dLbt  Iti&ratp 

of  tijc 

On!tiet0itp  of  BortI)  Carolina 


Collection  of  jl2ottS  Caroliniana 


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aasiis^w 

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1 

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UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


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TTiis  book  must  not  f 

be  taken  from  the  i 

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SBI^IPCDIBIP^  (DW  0^^®^ 


ADJUDGED  IN  THE 


SUPERIOR    COURTS    OF    LAW   AND    EQUITY 

OF  THE 

STATIC  0¥  Noa  \B^-eAB,01i\Xa, 

FROM  THE  YEAR  1789,  TO  THE  YEAR  1798. 

BFJOHJy  HJiTfFOOD.  ESq. 

One  op  the  Jcdqes  op  the  Superior  Courts  of  Law  and  EauiTT. 


SECOND  KDTTION, 

With  References  to  subsequent  enactments  of  the  Legislature,  and  decisions  of  the 
Court  of  Conferente  and  the  Supreme  Court,  a  Table  of  the  Cases  reported,  map" 
ginal  Abstracts,  and  a  new  Index. 


BY  WILLMM  H.  BATTLE, 

Of  Fhanklin  Countt. 


PRINTED  BY  JOS.  GALES  &  SON. 
1832. 


0' 


PREFACE  TO  THE  SECOND  EDITION.. 


In  presenting  the  Public  with  a  new  edition  of  the  first 
volume  of  HAYvvDOu'b  (North-Carolina)  Heports.  the  sub- 
scriber trusts  that  his  efforts  will  be  received  with  iiidul- 
geiice.  As  that  very  valuable  book  w  as  out  of  print,  a  bare 
republication  of  it  must  have  been  an  acceptable  present  to 
the  profession.  P»ut  the  subscriber  has  ventured  to  annex 
lieferences  in  each  case  to  such  legislative  enactments  or 
Judicial  decisions  as  have  been  subsequently  made  upon 
the  points  adjudged,  or  the  doctrines  embraced,  in  the  Re- 
ports.  He  has  also  prepared  a  Table  of  tlie  Cases  reported 
in  the  volume — affixed  to  each  case  that  required  it  a  mar- 
ginal note  or  abstract  ol  the  points  adjudged — and  to  the 
whole,  has  added  a  new  Index.  The  subscriber  is  fully 
aware,  that  the  W  ork  niiglit  have  been  executed  in  a  much 
better  manner  by  one  of  greater  skill  in  (he  profession,  and 
of  more  ample  sources  ol  research.  A  limited  Library  has 
forbidden  a  reference  to  many  of  the  English  Authorities 
and  to  all  the  American  Books  of  Reports.  It  is  hoped  and 
believed,  however,  that  all  the  decisions  of  our  own  Court.* 
Lave  been  consulted  and  properly  referred  to.  The  same 
remark  is  applicable  to  our  statutory  provisions.  But  what- 
ever may  be  the  defects  in  the  attempted  improvements  of 
the  present,  edition,  it  is  matter  of  consolation  that  it  pre- 
serves the  full  value  of  the  original  woik. 

WILL.  H.  BATTLE. 

Franklin  County,  June.  1832. 


ri 


■OF 

THE  NAMES  OF  CASES 

REPOR  riiD  IN  THIS  VOLUME. 


A. 

Adams  ».  Spi-ar  /iffye  215 

A  lei)'-'  K.\  ciitKr«.u.  Stokes  12J 

All^.'  V    VVi|li:iiiis  17 

Alst  1.  V   T»>1.  r  3   i 

Aniiiymi.us.     Slier, ff's  Sale  2 

Oi  ,iha'  '    Bond  144 

• li.jiinction  162 

Appe.il  171 

— DepririaiM  currciic)  18  ) 

AccmirK  2^6 

;-ta'iite  otX'n-.itutions  243 

Sirvic    of.B'l  286 

— ^       PIt'M  o'  plene  ailminis- 

InnU  295 

Pl.i>  .  t  ,1(>.  297 

Ceriiorari  302 

p.<ivi-'Mul  ■creetneni  331 

Al  II  ijiy  seqmslral'ii  34r 

Deposit! -fis  349 

■       Action  (it'ilelit  354 

—       l.eiti  r-.  of  ailm'nsti'n  355 

Cerlioiari  367 

!■'    s.  judgment  39S 

Ameii'diiiL-iit  401 

Aiincals  402 

■  Ceriiorari.  Discontinu- 

ance 405 

Slimff's  levy  415 

Sta'ott  cif  Liinitaiions  416 

Certiorari,  Discontinu- 
ance 420 

Sli.i.lV  422 

Inj.incnon  Bill  451 

Sci/a  ajjaiiikt Ex'rs.  455 

— F  iry  457 

Ittcord.  Stauite  of  Li- 
mitations 459 

JudLTnii  nt  V.  Ex'rs.     460 

Appeals  462 

— —       1'Of.session    of  vacunt 

l.cls  466 
lieairJari                       469 

1,1,  V     oi-y  4S1 

Bill  of  foreclosure      482 


Plene  adminislravit 
I'se  and  occuiyaiioi; 


Abateitii  nt 

V  r ance 

Ab..te"'eiit 

-  V.  A'ri>,t;ioii  et  al. 
■  V   B    ilty 

•  V  Ur  iwii's  Executors 

•  u    l)i  iieny 

-  ».  Jucksoii 

-  V  Keiii.ii's   Adininistnilors 

-  V   OliUiam 

-  II.  Sian  on 


484 
485 
487 

ib. 
488 
500 
164 

.76 
227 
248 
14 
216 
165 
271 
395 
1 
369 
363 


Al Ki  V.  B   II 

AniiiKlon  V   Aiiington 

Avery  v-  Br.inc>- 

Aveiy  V  '.Moure's  Executors 

B. 
Bailey's  Adm'rs.  w.Cocliran'a  .\dn; 
Bakei'  V-  Loiv 

Rai  i^es  Oy  lier  guardian  v.  Hogg 
Beiry's  Adm's.  v.  Pullam 
nil  lews,  Adm'r.  v.  Bo,:;an 
Bla'  k,  assignee  v.  Bird 
Blanionu.  Miller 
Bl  iUnl  ,..  fhU 
Blacklfcd^e  v.  Simpson 
Ri-..df.rd  2)  Hill 
Brckell  V.  Bass 
Br  gill  V    While 
Brown,  CamphoU  h  C  .  v.  Cleaiy  & 

Craig,  Adm'r    of  Crag  107 

Urown,  Caiiphi  II  Sc  Co.  v.  llie  adini's. 

o! Cr.ig  &  Cl.Mi}  378 

Bunii  V.  Mo  re's  Executors 
Uunovv  V   Seller's  Ex"CUlurs 
Buiio'   V.  Shep;;ard 
C. 
Ca  n  ■»    Put  lam 

(  ampbell,  \»s  gut-e  v.  Mumford 
0-irruthers  r.  Tillman 
Carter  v   Brancli  135 

Carter's  Executors  A  Riitlaiul  97 


lot 

1 

485 

15 

13 

273 

4 

502 

259 

22 

137 

492 


279 
501 
399 

173 
398 
501 


TIULE  Ul'  TUL  .NAJUES  OF  CASL:*. 


Chambers  I).  Smilli  pa ^e  366 

Clirislrra'i  .  t  :.l.  V.  r  .m^ibell  et  al.      125 
CI  trk  r.  Ki'iion  and  IIill  308 

Cl:ir>  V.  AHlvon  111 

(;le;iry  v-  Coor  ami  Hiwk"!  22i 

ClemV •    s  &  Co.  v.  Kison  &  Wiiplit     13 
Colil>-  II  Fowler  12 

CoH-ns  V    nirkiii^oii  utid  Allen  240 

Conn   .  ti   Gwiiin's  Kxeciitors  121 

CO'  k  V.  Little  Miul  arollicr  I6S 

Cowpcrr.  Edwards.  A<lm'r.  ofWebli    19 
Cov  V.  Jarkson  423 

Cnidi-n's  K.\eci)!  rs  v.  Ne-le  338 

Cupplfi,  Guudiai)  of"  Allen  v.  456 

D. 

Tlavis'  Execntors  v.  Wilkinson  et  al.  334 

Davison  v.  Mull  3fi4 

I):<v  slv  v.   Divls  280 

Dct-iow  V.  M jne's  ExfCiilori  21 

Den  on  deni.  of  Andrews  i^.  Miilfordail 

"  "     of  Biker  r    Webb  43 

"     oflJellt).  Hill  72 

"  "     of  Faiicloihr.Iiigndiam 

andjnnes  501 

"  "    of  Lane  K.  Diivis  277 

"  "     of  Osbo'nei).  Wondson     24 

"  "     ol  I'lrkt).  Coclir;inetal.l78 

"  "    of  Foil. ck  I).    Harris'v 

hilrs  252 

"  "     of  Sandifer  a.  Foster      237 

"  "     of  Sass'.T  liv  Riiardian 

V  Bht'li  259 

"  "     f,f  Slade  T.  Smith  248 

•'  "     of  Tyce «.  Ledlord  26 

"    ofWilcnxii. 233  &,  484 

"  "    of  Youn^cif.  Erwin         323 

Dickey  v.  Ho"denpile  358 

Dookr.  Caswell  18 

E. 
Elmore  v.  Mills  359 

F.l'vick's  Executor  I'.  Uush  28 

Eiifcland  v.  Witherspoon  361 

Enpli-'i  1).  Camp  C.5H 

Evans  V.  Kennedy  423 

Evans  V  Nuriis's  Administrators         411 

F. 
Furrcl  «.  I'erry  2 

FeririKoii  V.  FitI  2,!9 

FertfU'^.-n  aid  Wife  i>.  Taylor  20 

Flower'.  V    Clasijow  12y 

Fori  man  xi.  Tyson  496 

G. 
Gallir.ith  V.  Whyte  464 

Ge    V    V'-tinpr  17 

Gl<s -  <\\  V    Flowers  233 

Gl  fl   1'   V   Newlon's  Exi'culor  336 

G»'-'' '    •     \-s'jjn  •- t!.  Young  3 

Greer  v.  SliepparJ  96 


H. 

II  igan  V.  Paine  272 

HamihoiB.  "^Illams  13S 

llnmiUim  V.  Dent  116 

Harufi  1,1  I,.  Wesibroot  258 

H;..vl    ».  C<itta„  21 

Higli^our  ti    Murray  21 

Hr.dfre'  V.  KloiiMf  414 

H"gu''s  Execuu.ips<).  Aslie  471 

"  "  r.Wliiie'sAdiT.'r  298 

Hosller's  Adm'r.  t)   PaUerson  et  :.l     210 
II'«iS(>r  r    R  v., olds  114  &  143 

Ilnsrh.  ••  t'.  Gi.  s  V         26 

Hii};h--'s  Adm'r  t)    Stokes's  A  'mV  372 
lluntc.  Jui-ks&  London,  Sur.  Part's 

or.liicks&  Co.  173 

I. 
Ingram    Assignee  v.  Hall  19.*? 

Ingnm  v  Lmi.  r  221 

J. 
Jamiesnn,  Assig'nef  v.  Farr  182 

Jonc  s  V    Uri'  I:tey  20 

Jon  s'sAdm'  .  v-  mount's  Executor  238 
Jones  ■».  Jones  488 

K. 
Kenne.ly  v.  Ale\o>d  r  25 

Kennedy  &  Co.  ti.  Filrnian  404 

Kennedy  &  C"-  f.  Faimian  408 

Kennedy  &  Co.  v.  Fiirman  458 

Kenon's  Ex'is.  v.  AVilliamson,  Mor- 
ris 'in. I  others  350 
Kiddie  Snr.P  rt.  of  Ramsa\  &  Kiddie 


V.  Debruiz 

420 

Knight  and  Wife  v.  TI 

omas 

2b9 

L. 

Lee  t).  Ashley 

186 

Lr  wis  V.  Hynes 

278 

t.ew.a  V.  Williams 

150 

l.owtliorpe  0    Smith 

255 

Liitterloli  V.  Powell 

395 

M. 

Midox  ti.  Hi  skins 

4 

Martin  t».  Si.ier  ..nd  Montgomery 

369 

Mivw'lc    Holland 

302 

M.  Klzu'sEx'rs.t-.Ol 

pliant 

sEx'r 

.     4 

M'Kmze  »    Asho  502 

Ml  Mi'pphev  V.  Campbell  181 

M(  N  iiph'dii's  Kx'rs.  V,  Mosely  331 

M.  Naiifflitiin'sSur.  Part's  v  Naylor  180 

V.  Moon  189 

V.  Norris  Sur.  Part.  216 

— V-  Blocker's  Adm'r.  417 

t'.  Lester 

t)   Hunter 
McKa    V.  Moi>rc's  Adinr's. 


M,  ■  ilTi  V  Spears 
M.rrti  t>  Merritt 
Jlerritt  t.  WarmoutU 


423 
454 
182 

li2 
20 
12 


TABIE  OP  THE  NAMES  OP  CASES. 


pctse 


Mills  u.  McAllister 
Mil  jT,   V-  Gilmour 
Moniliirt''!  Excculor  v.  Alston 
Mooii'  V.  Sn' I  rill's  \dm'r. 
Mtirli   e  V  R'^Minfi 
Miiri.lif.\  V.  Work 
MusliK.w  &  Co.  V.  Graham 

N. 
Nasli  V.  N.sh's   Ailm'r. 
Nelius  V.  Brickell's  Adm'r, 

O. 
O'Nial  V   Owens 

P- 
Fark  u.  C"chran  et  at. 
Paikcj'  I'.  Stephens 
l>:.ik.  r&  Wifei).  Philips 
Patterson  el  at-  v.  Patterson  and  Sel- 

lars 
Patters'  n  v    Patterson  et  al. 
PeMie  V.  Foisome 
Pe  rie  v    Knisom 
Pefie's  I'.x'r!-.  v.  Webb's  Admr's. 
Perkins  v    Bullmger 
Peliiford  J).  Sanders 
Porter  u.  McClure 

Q. 
Quinton  v.  Courtney 

R. 
Reynold--  v.  Flinn 
Ritchii-  V.  McAuslin 
Robenson  v.  Stone 
R.ib"  rtso"  V   Smart 
Kluxles  »   Browrilow 
Kf)(j<-r<  V.  liril'  y 
Rutherford  v.  Nelson 

S. 
Seek«r|(r||t  on  dem.  of  Wright  and 

Will-  «.  Bogan 
Seers  »   P-irker 
Sherri'd  v.  Davis 
Sm'th  V.  S'.  Luwrence 
Smilli  ri  a).  V.  EsttS 
Smitii  ti.  Powi-ll 
Snitil  V.  Mite  rll's  Executors 
SnoW'U-n  V.  Humphries 
Southerhnd  ».  Mallett 
Sp'il  r  D,  Sinllcr 
Stan'l'  I  V.  Bains 
Stall  V    V  I'ma 


303 
279 
2 
16 
276 
105 
361 

228 
19 


410 
218 
451 

167 
163 
181 
413 
96 
367 
399 
360 


106 
220 
402 
159 
16 
256 
105 


176 
126 
283 
174 
348 
452 
289 

21 
461 
482 
238 
463 

Sf8 
221 


Slate  V    Blount  and  Blount  4 

"    V   Rr  dley  403  &  463 

"     ,.  Bown  100 

"    «.  ("oulter 

*•    V  tlurtis 

"    TI    Dickens 

"     V-  F.vaMS 

"     V      arrijues 

"     r    Greenwood 

"     V.  Grisham 

"     V   Irwin 

"     V.  Jiiinston 

"     V.  Joyce 

*'     V.  Long 

"     V.  f  ontj 

"    V.  Moore 

"     V.  Minn 

"     V.  Miiftniss 

"    T).  N'Tr's 

"    V.  OMham 

"    V,  Ransome 

«'     V   R.berts 

"     V.  Tw:tty 

"     V    VVfbb 

"     V    White 
V.  Wilson 
V.  Anthony 
Strong  V.  Spear 
Strudwi.  k  Ti.  Shaw 
fiw.mn  V.  G.UKe 
Swepson  V.  Whitaker 
T. 
Tinilatl's  Executor  V'  Johnston 
Trnxler  v-  Gibson 
Tune  V.  Wdlams 
Tuton  V.  Sheriff  of  Wake 

U. 
Univi-rsity  of  N.  Carolina  ti.  Johnston  373 

W. 
Wnlk'.r's  Adm'rs  v.  Hawkins  398 

Waller  j;.  Bmddie  28 

W'  Id)  V.  «  .tkins  an    Pickett  369 

Whiibie's  \dm'r.  K.  Fraaier  275 

\'  il.  ox  t).  R  }•  410 

Wii, si  w  t..  Bloom  217 

Winsowj)    W:.lker  193 

W  LSI   auj).  thelieirs&c  of  WiRstead243 
Wiihevs.jo.mt,.  M.ell  12 

Witii-rspoon  &  "  ifc  V.  Blanks  496 

Y. 
YarboTonjjh  »•.  Giles  4^ 


40  Sfee 


3 

471 
406 
281 
241 
141 

12 
112 
293 

43 

154 

458 

482 

4 

99 
429 
450 
1 
176 
102 
103 

13 
242 

98 

214 

5 

224 

372 

465 

IS 

485 


IMMM 


H/^lf  WDDD^i  mmiPDB^go 


HALIFAX,  OCTOBER  TERM,   1789. 

Arrington  v,  Arrington. 

In  a  gift  of  pefsonal  chattels,  a  s  mbolical  delivery  is  sufficient. 

ACTION  of  Detinue,  fur  a  no.a;i'o  boy  given  fo  the 
Plaititiff  Oy  liis  uncle  SanilU'er.  The  boy  licins  in  Vir- 
ginia at  tlie  time  of  tlie  i^ift,  and  no  <lcliveiy  made,  ex- 
cept  of  a  dollar  instead  <if  tlic  bi>\  :  the  Court  rnl-d, 
that  delivery  of  possessinn  in  such  cases,  is  principally 
in  order  to  identify  tlic  property,  and  that  it  inij;ht  hIso 
answer  the  purposes  id' iiotoiiety  ;  but  when  the  identity 
of  them  could  be  proven,  the  gift  v\as  good  without  de- 
livery :  a  verdict  for  the  FlainiifT accordingly.  And  as 
well  as  1  recollect,  )ier  Spkncer,  if  tin  le  had  been  two 
boys  of  the  same  name,  a  delivery  might  have  lu>en  ne- 
cessary, but  as  there  was  only  one,  the  proof  of  identity 
was  easy. 

Note.-  QHsrc  i!e  hoc.  Actual  delivery  ii  necessary,  not  for  identity,  but 
to  obviate  the  ohjection  oi'nudum  pactum.  A  g\(t  accompanied  with 
a  delivery  of  poMsession,  is  a  contract  executed  ;  but  if  there  be  no 
actual  delivery,  the  contract,  if  silt,  would  be  executory,  and  could 
not  be  enforced  without  a  sufficient  consideratiim.  Vide  2  Black. 
Com.  441.  Bullock  V.  Tinn;n  U  loifi,  2  Car.  Lav,  Rep.  271.  Picot, 
ttdm'r  of  Li-gget  v.  Sander.ion,  1  Dev.  Rep  309.  The  only  case  which 
seems  co«/™,  'ts'in  Brookes'sAbridg.  Tre.ipass,  303,  cited  in  ficoi  r. 
Saiiilerson  ;  but  that  cast  turned  upon  Iht  question  whether  Trover 
or  Trespass  could  he  maintaineii  upon  a  general  property  without  ac- 
tual possession  ;  ar.d  it  may  be  presumed,  that  the  word  "j^ives"  was 
used  without  considering  it.i  confin  d  .id  tcclinical  meaninjc.  2  Sujid, 
47  a.  In  the  case  vf  Liivendtr  v.  Prilchard's  attm'r  the  delivery  of 
a  few  ears  of  corn,  was  held  a  gond  ileli>cry  of  all  the  duuot's  corn, 
though  hut  a  small  quantity  of  it  was  present.     3  j^uj.  337. 


i  Haywood's  reports. 

I^llj^"  HALIFAX  OCTOBER  TERM,  ir90. 

Baker  v-  Long. 
Where  there  is  judgment   and  execution  ap^-ainst  the  ancestor  in  liis 
lieiinoe.  no  sci  fa.  is  nrcesiary  against  heirs  or  devisees. — The  de- 
mnrrinp  of  the  parol  does  not  hold  in  this  State. 

•  The  lantl**  were  devised  after  payraeiit  of  debts  to  the 
(  O  PlaintiflT,  and  there  was  judgment  again'st  the  anr.estop 
ill  hi^  lifitime.  It  was  adjndijed  n(»  sci.fn.  was  neces- 
sary in  order  to  affert  the  lands  in  the  liands  of  the  heir 
or  devisee  after  the  death  of  the  ancestor  or  devisor,  be- 
canse  the  lands  never  descended  ;  and  if  they  had,  it  was 
cum  07iere  of  the  jud.^inenf,  and  tlie  sci>  fa,  is  only  ne- 
cessary where  a  new  party  is  to  be  charged  ;  but  in  this 
case,  execution  was  taken  out  in  the  lifetime  of  the  an- 
cestor, and  the  Court  said,  that  attached  upon  the  land 
and  went  with  it  to  whoever  it  came.  Also,  per  Wiii- 
liAMS  &  Spencer,  the  demnrrin;;  of  the  parol  had  its 
origin  in  feudal  principles,  and  does  not  ap|ily  here. 

NoTK.-Tbe  statute  of  5th  Geo.  2,  c,  7,  makes  lands  in  this  State  liable 
tothe/./o.  execution, «nd the  case  o(  JBragner  v . Langmead,7  T.R  20, 
shews,  that  if  a  Defendant  dies  after  the  commencement  of  a  term,  a 
judgment  obtained  on  any  day  of  that  term,  will  relate  back  to  the  first 
moment  of  the  term,  and  an  execution  may  issue  upon  the  judjfment, 
and  be  levied  upon  the  property  of  the  deceased  without  making  his 
representatives  parties  :  a  fortiori,  a  jndKment  and  execution  before 
the  death,  will  be  pr-.per  without  a  set.  fa.  to  the  representatives — 
Vide  Sen  an  dem.  of  Btiker  v.  Webb,  post  i3.  Sell  v.  Hill,  post  72. 
Jones  a  others  v.  Edmonds,  3  Murphey  43. 

State  V.  Ransorae. 
Per  WiiLiAMs,  Justice.  A  man  may  as  well  be  in- 
dicted on  an  affidavit  not  signed,  as  if  it  was  signed. 
The  signing  is  only  for  the  sake  of  evidence,  to  prevent 
one  man  being  mistaken  for  another,  and  it  shews  also 
that  it  was  dotie  with  deliberation. 

(  2  )  Farrel  t;.  Perry. 

If  a  father,  at  the  time  of  the  daughter's  marriag^e,  puts  a  negro  or 
other  chattel  into  the  possession  of  the  sonin.law,  it  a  primu  ficic. 
•  gif  Int<  resit  in  the  event  of  t'le  question,  but  not  of  ihe  cause, 
Wii  not  exclude  a  witness. 

Per  Williams,  »  ho  delivered  the  opinion  of  the  Court. 
If  a  father  at  the  time  of  his  daughter's  marriage,  puts 
a  negro  or  other  chattel  into  the  possession  of  the  son- 
in-l)iw,  it  is  in  law  a  gift,  unless  tlie  contrary  can  be 
proven.  For  <ifher\vise,  creditors  miglit  be  drav*n  in  by 
false  appearanies.  In  this  case,  it  was  ruletl  per  curiam, 
thiit  a  man  interested  in  the  event  of  the  question  oa 
Which  tlio  Defendatit's  title  hau$a>  though  nut  in  the 


HAYWOOD'S  REPonrs.  '3 

event  of  the  cause,  must  be  admitted  aH  a  witneag,  con-Oct.  1790. 
tra  Rerves  and  Symonds,  and  the  rases  there  rired  ;  and  '•^'^'''^i' 
said,  if  we  begin  to  exclude  from  testimony  for  bias,  we 
shall  be  without  a  rudder  or  a  polar  star  to  direct  us — 
for  friendship,  resentment,    religious  opinions,   sense  of 
honour  in  diff'-rent  men,  &c.  are  to  be  considered,  in  or- 
der to  find   out  the  bias  wliicii  will  probably  be  in  each  f  2  ■) 
witness,  and  of  tiiese  the  Court  cannot  know  any  thing 
in  most  instances.     It    is  best  to  adhere  tu  the  ancient 
rule  that  interest  shall  alone  exclude. 

NeTE  -Astothe  first  point, vide  Carter'sex'rsv.Ilniluid,post97. Par- 
ker &  -wife  V.  Philips,  post  451.  The  act  of  1784  f  i?f!).  c  2J5,  s.  7) 
makes  void  paiol  gifts  of  slaves  ;  but  in  <  onslruing  the  act,  the  Courts 
have  uniformly  decided,  that  such  a  gift  is  good  between  the  parties, 
and  void  only  as  against  creditors  and  purcliaser-.  Knight  &  iiiife  v. 
Thomas,  post  289.  Pearson  v.  Fisher,  1  Cor.  L.  Rep  460.  Sherman 
V.  Rnisel  ib.  467.  M'ltee  v.  Houston,  3  JUvrphey  429.  n'atjord  v. 
Pitt,  ib  468.  (In  the  two  last  cases  the  purchasers  hid  notice  of  the 
gift).  Lt,nch's  cxr  v.  Ashe,  1  Jla-wka  338.  The  act  of  1806  Cliev.  c. 
701,  «.  1)  provides  tliat  no  parol  gift  of  slaves  shall  be  good  in,any 
case  ;  accordingly  it  has  been  lield,  that  a  written  transfer  is  necessary 
in  all  cases,  even  as  between  the  parties.  Cotten  v.  Poviell,  2  Cur, 
L-  Pep.  432.  Barro-w  v.  Peniier,  3  Mtirph.  483.  The  third  section 
of  the  act  of  1806,  requires  those  claiming  title  under  parol  gitts,  to 
bring  their  actions  within  three  years,  &.c.  which  was  decided  to  bar 
the  legal  remedy,  but  to  give  no  ^ir/e  to  the  possess' ir  Skinner  v. 
Skinner,  ?•,  Murph.  535.  Lynch' sex'r  v.  Ashe,  1 /fowts  338.  But  this 
is  altered  by  the  act  of  1820  fHev.  c  1U55).  Tlie  third  section  just 
referred  to,  provides  that  children  in  possession  of  slaves  at  the  death 
of  their  parent  under  a  |jarol  gif',  may  either  retain  thi-m  as  an  ad- 
vancement, or  may  bring  them  into  hotchpot  and  claim  a  distributive 
share.  And  the  proviso  extends  to  cases  thereafter  to  be  made,  as 
well  as  to  those  theretofore  made.  Bull's  adm'r  v.  Brooks,  3  Murp. 
133.  Stalliiigs  V.  Stallings,  1  Vev.  Eg.  Hep.  298 — A  reservaticn  of  a 
Jife-estate  in  a  gift  of  slaves  is  void,  but  it  before  the  act  of  1806,  such 
.1  reservation  had  been  made  in  a  parol  gift,  and  the  donor  had  conti- 
nued in  possession  until  his  fieath,  which  was  more  than  three  years 
from  the  time  of  the  gift,  yet  the  donee  would  not  be  barred,  as  the 
donor  might  be  considered  as  holding  under  his  title.  Vass  y  leifeii 
others  v.  Picks,  3  Murph.  493. — Since  1806,  if  a  parent  puts  a  slave 
into  the  possession  of  a  child,  without  an  express  parol  gift,  this  pos- 
session is  not  adverse,  and  will  not  divest  the  title  of  the  parent,  or 
b.ir  his  action.  But  dictum  by  Hai.l,  Judge,  that  an  express  parol 
gift  might  be  ripened  into  an  indefeasible  title  by  a  possession  of  three 
years.  Justice  v  Cobbs  SJ  Jeter,  1  Uev.  Rep.  493.  This  dictum  of 
'  Judge  Hall  is  overruled  by  the  case  ot  Palmer  \.  Faucet,  2  Vev.  Rep. 
.240. 

As  to  the  second  point  decided  in  this  case,  vide  Madox  v.  ffo^- 
tins,  post  4,  contra.  Porter  v.  JM'Clure,  post  360.  Harrison  v,  Har- 
.-ison,  2  Hay.  355,  &c.  Vide  also  Philips  on  Evidaice,  vol.  1,  38.  JiuJ. 

jV.  P.  283,  and  the  cases  referred  to  in  each  of  those  treatises,  which 
iuWy  support  the  decision  in  Farrei  v.  Perry. 

Montfort's  E.\'rs.  v.  Alston. 
Bond  for  Virginia  money.     Per  mritim.     When  Vir- 
ginia money  is  contracted  lor  in  tliis  Stale,  payable  here, 
it  mnat  be  determined  according  to  the  rates  established 


4  HAYWOOD'S    REPORTS.  I 

Mar.iysi  by  law,  nof  aero  1(1  ins;  to  the  exrliango  ;  otIiRrwisc,  were 
".^"^''"^it  cnntrarfi'fl    in    a   foreign   couiitry  and  there  payable. 
But  if  ill    State  rontracts,  the   cxrhan.aje  at  Halifax  f(ir' 
instance  shall  be  the  measure,  wiien   it  is  diffennt    at; 
.   Edenton.  and  still  more  so  at  other  places,  this  would 
^     '  be  a  strange  mode  of  administering  justice. 


(    3) 


MORGANTON,  MARCH  TERM,  1791. 

ANONYMOUS. 

Henderson  moved  against  the  Sheriff  for  not  returning 
the  execution  ;  and  among  other  things  it  appeared,  the 
Sheriff  had  bought  part  of  the  property  himself.  And 
per  Spencer,  the  sale  is  not  lawful  and  the  Sheriff 
ought  to  be  punished.  This  opinion  was  said  to  be 
grounded  on  a  derision  that  had  taken  place  at  Salisbury 
some  time  before. 

NoTE.-Vide  Ormondv.  Fairdoth,  Con.  Rep.  550.  1  Mnrph.  35.  It  is 
a  general  rule,  that  all  persons  who  stand  in  the  character  of  trustees 
for  the  benefit  of  others,  are  prohibited  from  purrhasing'  at  their  own 
sale.  Vide  Judre  Mesdibbok's  opinion  in  Gordon  v,  Finley,  3  Hawks 
239. 

HILLSBOROUGH,  APRIL  TERM,  1791. 

State  V.  Coulter. 

A  person  entitled  to  a  reward,  offered  by  the  General  Assembly,  on 
the  conviction  of  an  offender,  is  a  competent  witness  ag.iin9t  such 
offender. 

Indictment  for  horse-straling. — The  General  Assem- 
tly,  at  their  last  scssioti,  had  offeicd  a  reward  to  any 
peison  who  would  apprehend  him,  to  be  j)aid  upon  con- 
viction. Stokes  apprehended  him  for  stealing  his  horse; 
and  now  upon  trial  of  the  indictment  for  stealing  this 
horse,  Stokes  was  offered  as  a  witness  on  the  part  of  the 
S'aie  ;  and  <hongb  it  was  strongly  objected  that  he  ought 
noi  to  be  received,  as  it  depended  upon  Coulter's  con- 
viction wheMier  be  should  be  entitled  to  the  leward  pro- 
mised b.v  the  General  Assembly,  and  that  he  could  not 
be  »i  lith-d  to  it  nnless  Conlter  slionid  lie  convicted.  Yet 
fer  curiam,  consisting  of  Spkncek  &  Macat,  he  is  a 
Con)(ieient  witne.HK,  and  must  he  received:  and  he  was 
reteived  and  gave  evidence  accordingly,  and  upon  his 
evidence  Coulter  was  convicted,  and  received  judgment 


Haywood's  revorts.  5 

of  deatli,  and  was  executed.     Vide  2  H.  H.  P.  C  304,Sep.  1791. 
280,  281.  v^-^o*/ 

NoT£.— Vide  ffe-.eard  v.  Shiply,  4  East's  Rep.  178. 

MORGANTON,  SEPTEMBER  TERM,  1791. 

Swann  v.  Gauge- 
Note  given  to  a  married  woman  who  lived  separate;  C  ^  / 
tlie  husband  never  assented  to  the  contract,  and  tlic  dtbt 
was  attached  as  due  to  him. — Per  Whliams,  (he  only 
Judge  in  Coiiif,  assent  of  llie  husband  is  not  neccssaty, 
tlie  debt  becomes  his  inunediaielj  njion  delivery  to  tlie 
feme. 

NoTE.--ln  such  case,  the  husband  might  sue  alone,  or  join  his  wife  with 
him,  which  shews  that  the  debt  is  due  to  him.  1  Chit.  Plead.  19 — 
The  husband's  assent  would  be  presumed,  untiFlhe  contrary  was 
shewn.  '     ' 

Greenlee,  assignee  v.  Young,  assignor* 
An  assignee,  two  years  after  the  assignment,  sues  tlie  drawer,  and 
takes  him  in  execution  bj  ca.  sa.  fnni  which  he  is  discharged  by 
an  ir'solvi'ut  .let.  Recourse  iq  the  assignor  is  pnne  by  the  delay. 
(Qwere,  whetlier  one  jear  woidd  not  be  too  Uing'  ?)  aisu  by  the  ca. 
Sa.  and  discharge  therefrom.— A  witness  may  be  introduced  to  shew 
the  consideration  of  an  assignment. 

Assignee  brought  an  action  against  the  drawer,  liaving 
waited  two  years  after  the  assignment,  obtained  jii'Ig- 
ment,  and  took  the  drawer  in  execution  by  ca.  sa.  Per 
curiam,  lie  has  forfeited  his  recuri'ence  to  the  assignor 
by  so  lung  delay  j  certainly  a  year  ought  to  be  considered 
the  longest  time  to  he  allowed.  Credit  in  this  counti-y 
is  never  given  for  a  longer  time,  and  indeed  it  is  much 
to  be  doubted  if  that  is  not  loo  lung.  2dly.  He  has  takea 
the  drawer  in  execution  by  ca.  sa.  wiio  iiath  discharged 
himself  of  the  debt  b\  the  insohenl  act.  Now  sujiixise 
the  present  Plainiifl'should  recover  against  tlie  assignor, 
and  he  should  sue  the  drawer,  the  drawer  will  plead  his 
formei'  discharge,  and  it  will  be  good.  So  by  this  means 
you  will  subject  the  assignoi-,  and  yet  leave  him  without 
remedy,  which  is  not  law.  Sdiy.  It  was  atijodged  in 
this  case,  that  a  witness  might  be  introduced  to  c.\pIuLa 
the  condition  of  the  assignment. 

Note  "The  cases  ofBro-.m,  Cumpheti  &  Co.  v.  the  ailm'rs  of  Craig  and 
Cleury,  and  Jllslon  v.  3'aj/(r,  post  378  &  381,  set  in  to  establish  the 
position,  that  a  person  who  receives  unnegoiiabic  paper,  is  not  hnund 
to  the  same  diligence  as  if  he  had  taken  a  negotiable  instruinpiit  un- 
der an  endorsemtnt,  and  that  h<  shall  not  be  liable  to  any  1'jss,  nnless 
under  all  the  circumstances  of  ihe  case,  he  be  deemed  to  have  neg- 
lected to  use  reasDuable  diligence  in  the  collfction  of  the  claims.-r 
With  regard  to  negotiable  instruments,  our  Courts  have  seemed  at 


6  uaywood's  repohts, 

Sep.  1791  some  loss  in  establishing  the  reasonable  time  within  wliich  an  endorsee 
^^rv^^  mu^t  give  notice  to  his  endorser  in  order  to  charge  him.  Williams, 
Judge,  in  the  first  case  above  referred  lo,  s:iys,  "  it  hus  been  deter- 
mined in  our  Courts,  that  a  year  shall  lie  the  longest  lime  allowed  for 
Vide  post  the  givinp  this  no<ice."  In  the  case  of  G-irdiner  v  Jones,  2  Mwph. 
21.  ?'>'',  429,  Daniel,  Judge,  says,  "  In  this  State  no  fixed  rule  has  bem  es- 
352.  tablished,  within  what  time  notice  of  a  demand  and  non-payment 
should  be  given  "  Kut  in  that  case,  fifteen  months  were  held  to  be 
too  long.  Subsequent  cases  have  shewn  a  disposition  in  the  Courts 
to  adopt  the  strictness  of  the  Enijlifh  law,  at  least  in  banking  and 
mercantile  transactions.  In  the  Stale  Bank  v.  Smiih,  3  Mwph.  70, 
where  a  note  fell  due  on  the  lltli,  and  notice  wa*  not  given  to  the 
endorser  who  lived  in  the  same  town,  until  the  17th  of  the  same 
month,  the  endorser  was  held  to  be  discharged  by  the  delay.  It  was 
said  by  the  Court,  that  even  if  they  should  allow  three  da\s  of  grace, 
yet  tiotice  should  have  been  given  on  the  15th,  and  the  del.ay  till  the 
17lh  was  too  long.  In  Brittain  ex'r  of  Brown  v.  Johnston,  1  Dev.  B. 
293  The  Court  (after  an  advisaria)  say,  tliat  '•  \rhcre  the  parties 
all  reside  in  the  name  town,  and  are  engaged  in  mercantile  pursuits, 
or  have  transactions  with  a  bank,"  the  Court  "  have  considered  them- 
selves warranted  in  rtiquiring  the  utmost  diligence  in  such  circum- 
stances." But  the  same  case  decides,  that  among  farmers  resident 
in  the  country,  less  stric'ness  is  required,  and  that  ten  or  twelve  days 
■delay  was  not  too  long.  Taney  v  Litthjohn,  2  Sa-wks  5*25,  holds,  that 
^vbtre  the  parties  all  resided  in  the  same  village,  four  months  delay 
would  discharge  the  endorser.  The  correct  principle  deducible  from 
a  view  of  all  the  cases  seems  lo  be,  th:it  the  que.stion  of  reasonable 
diligence  (which  is  to  be  determined  by  the  jury,  under  the  directions 
of  tiie  Court)  mus'  be  ascertiined  by  a  consideration  of  the  pursuits 
and  residence  of  the  parties  resi>eclively.  Brown's  ex'r  y.  Johnaton, 
1  Dev  293.  That  a  witness  may  be  introduced  to  explain  the  condi- 
tion of  an  assignment,  is  established  by  the  case  of  H  right  v.  iMtham, 
SJllurp  298,  in  which  it  was  decided  by  Mali,&  llBNDi-nsos,  Juilges, 
ag.'inst  TATLon,  Chief-Jusiice,  that  parol  testimony  was  admissible 
lo  prove  a  contract  variant  from  what  the  law  implies  upon  a  common 
endorsement. 

M'K.innie's  ex'rs  v.  Oliphant's  ex'rs. 
Per  Williams,  the  onlj  Judge  in  Court,  trover,  tre.s- 
pass,  deceit,  or  any  other  aciioii  of  Ihe  like  nature,  will 
lie  against  executors,  where  the  thing  itself  has  been 
used  HO  as  to  go  into  and  increase  the  testator's  estate, 
so  that  the  benefit  thereof  comes  to  the  (lossession  of  tho 
executor,  otherwise  where  the  thing  is  destroyed,  as  if  a 
r  4  ^  man  take  my  bullock  and  eat  him.  The  case  ot  Hambly 
^  Trott,  in  Cuwper,  is  nut  law ;  and  further,  I  never 
knew  a  ca^e  in  Cowper  to  be  received  as  law  in  our 
Courts. 

NoTX.— Vide  Jiecraw  v.  JHone'i  ex'rt,  pott  21.  Clark  v.  Bill, poll  308. 
Jvery  v.  Moore's  ex'rt.  post  362.  In  th.-  lant  case  cited,  the  article  of 
property  for  w  hich  the  action  was  brought,  did  not  go  into  and  in- 
crease the  estate  of  the  testator  ;  but  it  was  decided  that  that  made 
no  oifference.  The  Kditor  lia>  it  from  good  authority,  that  the  ex- 
pression attributed  tu  Judge  Williams  in  this  c»hr,  that  he  "  never 
knew  a  case  in  C  W/ier  lo  be  received  as  law  in  otir  Court;,"  is  i  mis- 
iMe,  ami  tvas  never  oied  by  hin. 


HAYWOOD'S    REPOIlTd.  2 

Blanton  v.  Miller.     Ejectment.  Sep.1791. 

Ruled  per  Williams,  tliat  the  Court  have  never  de- '^'''"''''^^ 
parted  ('mm  this  rule — where  the  |»arty  hath  hist  his 
deed,  or  is  out  of  po><se.ssioii  thereof,  he  himself,  and  no 
other  person  fur-  him,  must  make  oath  of  the  luss,  hefore 
he  shall  he  permitted  to  read  a  copy,  herause  no  other 
can  safely  swear  of  liis  want  of  possession  :  and  so  tlic  (  4  ) 
Plaintiff  was  called,  thongit  it  was  urged  to  the  Court 
he  was  in  a  forei.ajn  countiy. 

Note, — Vide  l}''riffht  &  wife  v.  Bogav,  in  note  post  ITS.  Park  v. 
Cochran  &  others,  post  410.  JVicholson  v.  Hiliiard,  1  Car.  Lurw  Re^. 
.253. 

SALISBURY,  SEPTEMBER  TERM,  1791. 

State  V.  Mann. 

Per  Williams,  tiie  meaning  of  the   word  command., 

as  applied    to   the  case  of   principal  and  accessary,  is 

where  a  person  having  control  over  another,  as  a  master 

over  iiis  servant,  orders  a  thing  to  he  done. 

Madox  V.  Huskins. 
Tiie  Defendant  had  purdiased  a  negro  of  Ward,  who 
pretended  a  title  under  llie  PlaiiitifT,  and  called  a  mun 
who  also  had  purchased  one  other  negro  of  Ward,  who 
claimed  it  in  (he  same  maimer — ohjectrd,  he  is  interested 
ill  the  riuestiiin.  To  this  it  was  answered,  tiiat  the  case 
of  Farrel  iSf  Perry,  in  Hulifax,  Octoher,  1790,  had  set- 
tled tliis  i)oint,  and  had  determined  tliat  the  ohjectioii 
must  be  as  to  his  interest  in  the  event  of  the  cause.  But 
per  Williams &Macay,  Judges,  where  a  man  is  plaiidy 
interested  in  the  event  of  a  question,  he  hath  beeji  e\- 
clinled  by  all  authorities.  And  per  Williams,  I  remi  m- 
ber  somelhing  of  that  case  at  Halifax,  but  the  circum- 
stances must  have  been  different  from  this. 

Note.— OverruleJ,  vide  ttie  references  in  the  note  to  Farrel  v. 
Perry,  ante  2. 

HILLSBOROUGH.  OCI'OBERTERM,  1791. 

State  V.  John  G.  Blount  &  Thomas  Blount. 

Whenever  one  p.  rson  has  the  money  of  another,  and  knows  what 

sum  he  onglit  to  pay,  he  must  pay  interest  tor  the  same. 

They  had  receiveil  of  the  State  at  different  times  for 
the  purpose  of  discharging  the  debt  due  from  this  State 
to  t;M-  Government  of  Martiniqu'-,  by  commodities  to  he 
|urchHs«d  ami  ahipped,  the  sum  of  thirteen  hnndred 


S  Aatwood's  reports. 

Oct.  1791. pounds— eleven  Jiundied  pounds  <liey   laid  out  accord- 
*i*''>'^^ii'in.a;ly,  the  rest,  they  never  applied  ;  and  the  qi|pstii»n  now 
was,  wliether   interest  sli'>ui<l   he  allowed.     Jlr.  .Moore 
urged   it  was  to  he  considered  in  tlie  niiture  of  a  loan, 
and  insisted  that  in  all  cases  where  a  man  retains  ano- 
ther's money,  the  amount  whereof  he    kno^s,    interest 
(5')  ""Sht  to  be  allowed,  and  cited  3  fVils-  205.     2  Re.  Bet 
*■     '  761.       1  Bur.  151.       2  Bur.  1085.      Doug.  724.      And 
per  mriam,  Wlierever  the  party   knows   what  sum  he 
ou.fifht  to  pay,  there  lie  ousht  to  pay  interest :  here  they 
well  knew  how  much  of  the  money  they  had  approi)riated 
to  the  purposes  they  received  it  for,  and  for  the  halance 
they  ought  to  pay  interest ;  and   it  was  allowed  by  the 
jury  accordingly  by  way  of  damages. 

Q^  This  case  may  have  been  decided  in  April, 
1792,  tlie  original  note  has  no  date  to  it. 

Note  -Vide  jyi/n<  f  .Jacks  and  London  surviving  partners,  &c.  post  173. 
The  English  authorities  upon  the  subject  of  interest,  ;ire  very  much 
at  v-iriance  with  each  other  :  (Note  to  jDe //uwVujicf  v.  Bu-wtrbank,  1 
'Camp.  N.  P.  Rep.  52)  :ind  the  liter  dMin  ons  appear  to  be  incoi:!pa- 
tible  with  our  notions  of  justice.  Vide  Com.  on  Coti.  2d  vol.  p  178-9 
ot  the  3d  Amer.  ed.  The  most  proper  rule  seems  :o  be,  th.il  laid 
down  in  Hunt  v.  Jacks  and  London  stirv.  partners,  he,  "  That  where- 
ever  the  debtor  knows  precisely  what  he  is  to  pay,  and  wlien  he  is  to 
pay  it,   the  jury  may  give  interest  by  way  of  damagirs." 

Strudwick  v.  Shaw. 
In  1728  the  land  in  dispute  was  granted  to  A,  who  in  1730  conveyed 
to  B,   who  soon  afterwards  went  to  England.     B  snlJ  to  (;,  who  ill 

came  to  this  country,  but  soon  went  hack  again.  In 
C  returned  to  Carolina,  where  lie  remained,  and  in  1787  brought 
suit.  One  D  settled  on  the  lands  in  questioii  in  1751,  lived  upou 
them  thirteen  years,  anil  died  in  possession,  leaving  a  son.  The 
son  assigned  to  some  person,  who  assi:,'ned  to  the  D  fendant,  who 
had  lately  pporured  a  grtnt.  Under  these  circumstances,  it  was 
held,   that  the  VlAmYiff'sjuspossessionis  was  lost. 

In  the  year  1728,  the  preinisis  inqnrstion  were granted 
to  one  Foster;  iri  1730,  Foster  conveyed  to  Governor 
Burrington,  who  sooii  afterwards  went  to  £iii;land  In 
the  year  Burrington  sold  and  conveyed  to  Strud- 

wick, by  a  general  desi'ri|)tiiin  of  all  his  lands  in  North* 
Carolina.     Strudwick  came  to  this  country  in  the  year 

but  soon  went  to  England  again,  and  in  the  year 
returnetl  to  Carolina,  where  he  I'cmained,  and  in  1787 
brought  suit. — One  Hopkins  settled  on  the  lands  in  ques- 
tion in  1751,  and  lived  upon  them  13  years,  when  he 
died  in  possession,  leaving  a  son.  This  right  of  posses- 
sion was  afterwards  assigned  by  him  to  some  person, 
who  assigned  it  to  the  Defendant,  who,  under  this  right. 
had  lately  procured  a  grant  from  the  State. 


HAYWOOD'S    REPORTS. 


y 


Tlie  argument  of  Davie  fw  the  Defendant— TIi(^  Plain-  0=*-  ''^^l- 
tiff  lias  shewn  ;i  tilk-  as  his  Counsel  al!e;^C!i,  to  thi>  i»i'C-  ^-■^"■'"'^ 
,;,niises  mentioned  in  tht?i  lieciaiation,  and  tlie  location  be- 
ing settled  by  iocmef  dctertiiinatioiis,  shall  not  be  broiigiit 
into  nuestioii  at  jn'escn!  :   bill  (here  are  several  material 
objections  aa;ainst  tlie  Plaintiff's  I'ccovei-y. 

1st.  It  does  not  appeal-  that  there  has  been  any  actual 
possession  in  the  lessor  of  the  Plaintiff,  or  the  persons 
under  whom  he  claims  since  the  year  1728  ;  therefore,  if 
the  Plaintiff  ever  had  a  i'i;;ht  to  recover  in  an  action  of 
ejcclniont,  tiiat  ris;hf  has  been  lost  by  his  laciies. 

The  nature  of  the  title  to  lands  is  such,  as  to  make  it  ^  f.  -^ 
divisible  into  liiree  liistlnct  species  of  projierty,  or  kinds  *■  ' 
of  ri^lit.  It  may  consist  of  tlie  naked  possession  or  a  right 
of  possession,  or  a  mere  right  of  properly.  The  first  may 
happen,  where  a  person  in  this  country  should  enter 
upon  a  woodland,  though  (granted  estate,  and  settle  and 
culti^ate  it,  and  tiius  actually  occupy,  without  the  sha- 
dow of  right  w  colour  of  titlf,  as  it  is  called  in  our 
Courts.  The  second  will  take  [vlacc,  where  the  patentee 
submits  to  the  nnsanctioTied  occupation  of  the  seitler, 
who  has  the  actual  possession,  while  t[ie  right  of  jiosses- 
sion  resides  in.the  pei'son  to  wliom  the  land  was  granted. 
The  third  s|)ecirs  of  pi'opcrfy  will  be  found,  where  the 
•  grantee  may  liave  "  the  ti'ue  ultimate  property  of  the 
lands  in  himself,  but  by  the  intervention  of  cei  tain  rir- 
rumstanci's,  cither  by  his  own  negligence,  the  solemn 
act  of  bis  ancestor,  or  the  determination  of  a  Court  of 
justice;  tlie  presumptive  evidence  of  that  I'ight  is  strong- 
ly in  favor  of  his  antagonist,  w  ho  lias  thereby  obtained 
an  absolute  rig/if  of  possession."  ZBl.Com.l  95, 196,  197. 
Co.  Lit.  345.  385.  Gilb.  Ten.  18. 

Ejectment  iieing  a  possessory  action,  it  lies  only  where 
tlie  lessor  of  the  Plaintiff  could  righiluily  enter,  and  the 
title  to  support  a  recovery  must  theri  fore  be  inseparably 
connected  with  the  right  of  possession,  anil  must  have 
this  ingredient  at  least.  The  title  of  the  Defendant  is 
entiicly  out  of  view.  It  is  an  old  maxim  that  a  man 
must  recover  by  the  strength  of  his  own  title  in  eject- 
ment, not  in  cotisequence  of  any  weakness  in  that  of  his 
adversary.  Evei-y  Plaintiff  in  ejectment,  says  Lord 
Manstfieii),  in  the  caseof  MJiins  v.  Horde,  must  shew  a 
right  of  possession,  as  well  as  a  right  of  propertj  ;  there- 
fore, tiic  Defendant  need  not  plead  the  statute,  and  the 


10 


HAYWOOD'S    REPORTS. 


Oct.  IT'S!- Plaintiff  must  shew  that  his  lessnp  had  a  right  to  enter  : 
^-^'^''''^'^  ami  tliis  can  only  he  cffpcied  by  proving  h  pDsscssion 
within  seven  years  in  the  FlHintiflT,  his  ancestors,  or  tiie 
jjei'sons  miller  wh'im  he  I'laims.  arid  such  possession  must 
be  an  actual  possession,  i  Burr.  119.  Runn.  112,  113. 
By  the  stature  of  21  Jac.  1  ch.  16.  "  None  shall  make 
an  ciitiy  into  land,  but  within  twenty  years  after  their 
riglit  or  title  sliail  first  descend  or  accrue."  Our  own 
act  of  limitations  only  alters  the  phraseology  to  "  shall 
thereunto  enter  or  make  claim,"  and  shortens  the  limita- 
tion to  seven  yeaivs:  so  flial  the  English  decisions  may 
be  considered  authorities  as  to  tiie  operation  of  tliis  part 
of  the  statute  ;  and  it  will  appear  by  all  these,  as  well 
as  the  opinions  of  every  writer  on  the  subject,  that  wlicrc 
there  hath  bet-n  no  possession  during  the  lime  limited  in 
(  7  )  the  statute,  either  in  the  lessor,  his  ancestors,  or  tlie  per- 
sons under  whom  he  claims,  the  Plaintiff  in  this  action 
will  be  nonsuited,  unless  his  case  may  be  brought  within 
some  of  the  exceptions  allowed  by  the  act  of  Assembly. 
Tiie  action  of  ejectment  is  only  competent  where  the 
Plaintiff  may  enter;  and  the  riglit  of  entry  is,  in  this 
case.  Completely  taken  away,  by  the  statute,  and  tiie 
claimant,  by  sue!)  default,  utterly  exrludcd  and  disabled 
from  any  entry,  or  claim  to  be  made,  after  the  seven 
years  are  expired.  This  is  not  only  the  plain  letter  of 
the  law,  but  the  construction  has  been  uniform.  Runn. 
14  to  17.  Salk.  205.  5  Bur.  2635.  6  Mod.  44.  Cas. 
K.  B  C73.     2  Keble  127.     1  Bur.  119. 

Thus  the  neglect  of  (lie  Plaintiff,  in  this  case,  to  enter, 
or  make  claim,  as  I  take  it,  has  wrought  an  actual  bar ; 
not  by  tlieUtfitidant  acquiring  title,  but  by  his  losing  or 
destroying  his  own  right  of  action  ;  and  to  the  authori- 
ties already  adduced,  may  be  added  the  case  in  Strange 
1142,  and  the  law  as  stated  in  2  Black.  196,  197,  198. 
The  law  ])resumps  that  tlie  tenant  in  possession,  eithcf 
had  at  first,  a  good  title,  in  corisequenco  of  which  he  en- 
tered on  the  binds  in  question,  or  that  since  his  entry  he 
bad  acquired  one;  and  theiefore,  after  so  long  an  ac- 
quiescence, his  possession  sliali  not  be  disturbed,  without 
enquiring  into  the  absolute  and  real  riglit  of  the  proper- 
ty, uncntiiiectcd  with  the  right  of  possession. 

He  said  ihat  the  legal  notions  of  |iossession  in  this 
country  have  been  extremely  vague  and  indefinite,  but 
lie  did  not  recollect  any  case  in  which  this  doctrine  had 
been  settled  with  due  precision.     The  constructive  pos- 


Haywood's  reports.  11 

session,  mentioned  in  some  cases  by  our  Judges,  is  a  Oct.  1791. 
doctrine  unknown  to  (lie  common  law  ;  but  lie  held  tliat  ^-^~'^'^^^ 
tlie  correct  idea  of  that  possession,  which  would  arrest 
the  operation  of  this  act,  is  such  a  posspsHinn  as  is  des- 
cribed by  Coke  List.  15.  ^uasi  pedis  posilio — 'I'hat  the 
claim  must  be  made  by  suit  in  law  uikUt  the  exjiress 
terms  of  tiie  2d  sec.  of  tlie  act,  and  tliat  the  entry  must 
be  an  actual  entry,  and  the  possession  an  actual  jiosses- 
sion.     fill/.  102,  103.     1  Salk.  285. 

Indejiendent  of  (lie  opiralion  of  the  2d  sec.  of  our  act 
of  limitation,  by  tlie  di'terminations  in  England,  receiv- 
ed as  authority  here,  seven  years  ad\erse  posscs.sion  is 
not  only  a  negative  bar  to  llie  action,  or  remedy  of  the 
Plainiiff,  but  a  positive  title  to  theDeiVndanl ;  and  tliere- 
fore,  where  A  had  the  [lossession  of  lands  for  twenty 
years  in  England,  Avitliout  interruption,  and  then  B  got 
into  possession,  on  wliiciiAwas  put  to  his  ejectment : 
here,  though  A  v\as  Plaintiff,  yet  his  possession  for  twen-  (  8  ) 
ty  years  was  deemed  a  good  title,  and  he  recovered  ac- 
cordingly. This  was  ruled  by  Holt,  Chief  Justice,  say- 
ing that  a  possession  for  twenty  years,  was  like  a  de- 
scent, which  tolls  an  entry,  and  gives  a  right  of  [losses- 
sion,  which  is  sutKcicnt  to  maintain  an  ejectment.  Salk, 
421. 

In  the  present  case  there  has  been  an  actual  uninter- 
rupted and  adverse  possession  for  thii'ty-six  years  by  the 
Defendant,  and  those  under  whom  lie  ( hums,  whereby 
he  has  acquired  a  title,  upon  the  strength  of  which  he 
could  I'ecover  in  this  form  of  action  against  the  Plaintift' 
himself,  who  has  now  nothing  left  but  the  mere  right  of 
j)roperty. 

The  Court  will  also  please  to  observe,  that  this  objec- 
tion, under  the  form  of  tlie  title  arrpiired  by  the  Defen- 
dant from  possession,  collects  additional  force  from  a 
comparison  of  the  statute  of  Jtimcs  w  ith  tlie  act  of  North- 
Carolina.  Tlie  3d  sec.  of  our  ;u  t  is  an  abstiact  from 
the  1st  sec.  of  the  English  slaiuie,  and  ojierates  on  the 
riglit  or  title  of  the  person  wlio  is  out  of  |)ossession,  svitli- 
out  appearing  to  touch  in  any  manner  Avhatsoever,  the 
right  or  title  of  the  tenant  in  iiossession. 

The  2d  sec.  of  our  law  enacts,  "  that  all  possessions 
of,  or  titles  to  any  lands,  tenements  or  hereditaments 
whatever,  deiived  from  any  sales  made  either  by  ciedi- 
tors,  executors  or  administrators  of  any  persons  deceas- 
ed, or  by  husbands  and  their  wives,  or  husbands  in  right 


12  Haywood's  reports. 

Oct.  1791.  „f  Oicii'  wives,  or  Iiy  indorsrmctit  of  patents,  or  otlicr- 
^'^'"^'''^^  uise,  of  vvliicli  the  piii'cliasrr  oi'  (inss-ssor,  or  any  rlaim- 
ina^iiiuier  ilirm,  liave  contimicd,  or  shall  continue  in  pos- 
session of  the  same  for  the  sjiare  of  seven  years,  without 
any  suit  in  law.  l)e,  am)  are  iiereby  ratified,  confinned, 
and  dcclafpd  _a;ood  and  lej^al,  to  all  intents  and  piifposes 
whatsoever,  against  all  and  all  manner  of  |ici-sons :  any 
former  oi-  other  title,  or  claim,  art,  law,  iisa.Efe  or  sta- 
tute to  the  C'lnti-ary,  in  any  wise,  notwitlislandinK."  In 
the  whole  of  the  statute  of  James,  there  is  nothing  like 
this  section,  yet  the  adjudications  in  this  country  iiave 
always  followed  the  construction  of  that  statute,  and 
have  generally  fallen  short  of  them,  without  noticing 
the  extensive  and  heni'ficial  operation  of  this  clause. 

It  will  be  remarked,  that  this  clause  relates  only  to  the 
right  of  the  tenant  in  possession,  operating  in  such  a 
nianiser  as  to  ripen  an  inchoate  or  defective  right  into  a 
complete  lille. 

That  the  act  emhraces  "all  possessions  of  lands,"  as 
well  as  "titles  to  latids,"  derived  from  any  sales  made 
to  creditors,  &r.  or  hy  indorsement  of  the  patents,  or 
otherwise.  Thus  every  "  sale,"  vvhethei-  of  the  posses- 
(  9  )  sion,  or  right  of  occupancy,  oi'  the  title  comes  within  the 
purview  ofHiis  clause,  which  goes  to  the  absolute  confir- 
mation of  the  title  of  the  |»nrchasei-. 

The  act  appears  to  have  embraced  expressly  b»th  the 
cases  of  a  mere  right  of  occupancy,  and  what  is  usually 
called  a  title,  hy  the  expressions  of  "  all  possessions  of," 
or  "titles  to,"  "which  the  purchaser  or  possessor:" 
So  that  sales  of  the  right  of  occupancy,  a  very  com- 
mon case  in  this  country,  ever  since  its  first  settlement, 
are  clearly  within  the  letter  and  policy  of  the  act.  The 
sale  and  assignment  of  the  possession  by  the  heir  of  Hop- 
kins, connected  with  a  continued  possession,  a  possession 
that  has  not  been  interrupted  hy  any  suit  at  law,  we  con- 
tend has  now  ripentd  into  a  complete  lille,  absolutely 
ratified  and  c<miirmed  by  this  act  to  the  Defendant,  any 
former  or  other  titles  notwithstanding. 

It  is  not  necessary  to  eiiquire  in  this  case,  whether  the 
Defendant  has  actjuiied  a  title  under  the  2d  sec.  of  this 
act,  that  would  resist  a  writ  of  right  :  the  Court,  how- 
ever, would  jiermit  him  to  ohsei\e,  that  if  this  act  con- 
taittid  no  more  than  the  statute  of  James,  there  could 
liave  been  no  (juestion  as  to  this  jioint ;  but  our  law  has 
a  mnch  higher  regard  for  possession,  and  connecting  it 


Haywood's  reports.  13 

with  the  circnmstancp  of  time,   tii;ikes   it  the  sti-onaffsf^c'- '791. 
evidence  (if  litle  ;  and  it  is  from  the  full  mid  stron!;:  'X-  ^-^'^'''^^ 
pressjoiis  of  tlii'i  chiiisc  of  the  act,  that  lie  liad  held,  a  ti- 
tle like  this  could  not  he  disturbed  by  a  writ  of  light  in 
this  counti-y. 

The  statute  of  limitations,  as  fai-  as  it  respects  real 
estates,  is  a  law  of  the  utmost  iiKjiortaiice  to  the  peace 
and  haj>piness  of  the  community.  I'lie  leadiiij;;  motive 
of  enierint;  info  society,  was  the  protection  of  iiropcrty, 
and  tlie  _e;reat  ohject  of  the  law  is,  to  secure  and  quiet 
men  in  the  possession  of  it :  fliis  |»iiii(y  is  stronj^ly  ex- 
pressed in  the  preamble  of  the  act,  '•  Whereas  great  suit, 
debate,  and  controversy  iiath  heretofore  bceo,  and  may 
hereafter  arise,  hy  means  of  ancient  titles  to  land  deriv- 
ed from  patents  granted  by  the  Governor  of  Virginia, 
the  conditions  of  which  patents  have  not  been  performed, 
nor  the  quit-rents  paid,  or  the  lands  have  been  deserted 
by  the  first  patentees,  or  for,  or  liy  leason,  or  means  of 
former  entries  or  patents  granted  in  this  Goveiniiient ; 
for  prevention  whereof,  and  for  quieting  men's  estates, 
and  for  avoiding  suits  in  law,  Be  it  enacted,"  &c. 

The  case  under  the  consideration  ol  tlie  Court,  is  pre- 
cisely one  of  the  cases  contemplated  by  the  act.  Where 
patentees  have  deserted  tlieir  lands  still  a  wilderness, 
and  others,  ignorant  of  s;ich  ap])ropriation,  have  settled 
upon  them,  and  improved  them  by  the  labor  of  many  v  '"  J 
years,  exjiecting  to  acquire  a  title  in  the  course  of  time, 
on  the  usual  terms  from  Lord  Granville  or  the  King;  it 
would  be  incompatihh^  with  the  principles  of  justice,  or 
the  policy  of  an  infant  Governmenf,  struggling  witii  the 
difficulties  of  settlement  and  a  feeble  pojmlatioii,  to  turn 
tiie  improving  tenant  out  of  possession. 

He  said  he  relied  w  iih  confidence  ujjon  tiiese  objections 
arising  out  of  the  statute,  sup|iiirted  hy  an  uniform  train 
of  decisions,  and  no  determination  in  this  counti-y  could 
be  said  to  have  shaken  these  autiiorilies,  unU-ss  tlie  case 
o(  Mnllett  and  Minns  in  this  Court,  should  he  consider- 
ed as  militating  in  some  measure  against  the  consiruc- 
tion  contended  for  on  the  first  point.  In  that  case,  two 
points  were  determined,  1st.  That  tlie  delivery  of"  the 
grant  to  the  gri^ntec,  should  raise  a  constructive  posses- 
sion, sufficient  in  law  to  preserve  the  grantee's  right  of 
entry  where  their  is  not  an  adverse  possession.  2d. 
That  the  Plaintiff  sliall  be  put  to  jirove  an  actual  posses- 
sion in  himself  within  seven  years,  only   v  here  the  Dc 


14  uaywood's  reports. 

Oct.  1791.  fendant  sets  up  an  adverse  possession  for  that  time.  In 
'•^'^''^*^  this  case,  there  lias  been  an  actual  ad»ci'se  pnssession 
ever  sinre  the  year  1751  ;  and  for  more  than  seven  years 
by  the  Defendant  himself;  so  that  this  new  doctrine  of 
consti  iictive  possession,  which  owes  its  bii-th  to  this  case 
of  Mallclt  and  Minns,  will  not  serve  the  Plaintiff  in  this 
instance. 

It  may  perliaps  he  said,  tiiat  the  absence  of  Burring- 
ton  beyond  sea,  as  well  as  that  of  tlie  lessor  of  the  Plain- 
tiff, and  the  time  strnck  out  im  account  of  the  interven- 
tion of  tiie  war,  will  bring  tiiis case  within  the  exception 
of  the  act  of  Assembly. 

To  this  he  answered,  that  tlie  proviso  of  the  act  of  As- 
sembly saves  tiie  ri.i^ht  of  action  to  [lursons  beyond  seas, 
only  for  eight  years  after  their  title  shall  accrue,  the 
■words  of  tlie  act  being,  "  or  persons  beyond  seas,  within 
eight  years  after  tiie  title  or  claim  becnmes  due,  shall 
take  benefit  and  sue  for  the  same."  So  that  it  becomes 
necessary  to  bring  suit  within  eight  years  after  the  ad- 
verse possession  took  iilnce,  even  upon  the  doctrine  deli- 
vered in  the  case  of  Mallett  and  Jlinns.  It  is  also  to  be 
observed,  that  Mr.  Sirudwick  came  to  this  country  in 
the  year  ,  alter  the  sale  of  Burrington  to  him,  and 

that  the  act  certainly  attached  upon  his  right  at  that 
time,  and  his  returning  to  England  would  not  prevent 
the  statute  running;  so  tiiat  after  striking  out  the  ten 
,  ..  years  from  March  '73  to  '83,  there  is  sulBcient  time  for 
^  ''  the  statute  to  have  complete  effect  ;  and  when  the  act  be- 
gins to  run,  it  cannot  be  suspended  on  account  of  any  af- 
ter defect  or  impediment  whatsoever.  To  prove  this 
point,  he  cited  Plowd.  368  to  37G,  saying  that  indeed  this 
was  the  case  of  a  fine,  but  that  the  reason  and  principle  w  as 
the  same  in  a  common  case  under  this  act;  and  that  the 
determination  upon  tiic  statute  of  limitations  had  ever 
since  followed  the  decision  in  tlie  case  of  Stowell  v.  Lord 
Zouch.     Svi:  Z  mil.  5S2  3.      iW'iH.  134.     Stru.  556. 

Tliere  is  one  other  point  of  great  importance,  which 
has  not  yet  been  sanctioned  in  this  country  by  any  direct 
decision.  He  said,  I  admit  the  doctrine  has  been  ques- 
tioned, hot  there  is  no  part  of  the  conimon  law  more 
clearly  settled  than  that,  when  a  descent  is  cast,  the  heir 
of  the  disseisor  has  the  jus  jmsscssionis,  because  the  dis- 
seisee cannot  enter  upon  his  possession,  and  evict  him, 
but  is  put  to  his  real  action,  because  the  freehold  is 
cast  by  the  law  upoti  the  heir.    Howell  was  thirteen 


Haywood's  reports.  15 

years  in  possession,  died  in  actual  possession,  and  the  Oct,  1791. 
law  cast  the  fieeliold  upon  liis  son  ;  and  the  reiison  of  •«-^~''~>^ 
the  law  as  stated  in  2(1  Black.  \77,  applies  to  this  coun- 
try as  strongly  as  any  other.  The  law,  says  he,  will 
presume  tliat  the  possession,  which  is  transmitted  from 
the  ancestor  to  the  heir,  is  a  riglitful  possession,  until 
the  contrary  be  judicially  shewn  ;  and  tlierefore,  the 
heir  shall  not  be  tWicted  by  a  mere  entry,  although  such 
a  measure  would  have  been  competent  in  law  to  iiave  dis- 
possessed the  ancestor.  Tiie  alteration  by  tiie  statute  of 
the  32d  Henry  8tli,  of  this  common  law  rule,  only  re- 
quires that  the  disseisor  should  have  five  years  peacea- 
ble possession  next  after  the  disseisin,  and  a  descent  cast 
under  these  circumstances  tolls  an  entry,  unless  the  dis- 
seisee should  have  made  continual  claim.  He  therefore 
concluded,  that  there  being  a  descent  cast  in  this  case, 
the  riglit  of  entry  of  the  lessor  was  also  tiiereby  taken 
away,  and  that  therefore,  the  Plaintiff  could  not  recover 
in  this  action  ;  and  relied  as  to  this  point,  upon  Inst.  250, 
225.     See.  426.     Gilb.  Ten.  from  21  to  36. 

Mr.  Moore,  in  reply,  cited  Burr.  Rep.  60,  to  shew  the 
doctrine  of  seisin  and  disseisin,  and  to  prove  there  could 
be  no  disseisin  in  this  country.  The  Court,  consisting 
of  Judges  Williams  and  Mac  ay,  after  advising  toge- 
ther on  the  bench  for  some  time,  said  that  tiie  jus  pos- 
sessionis  was  lost  by  the  PlaintiflT;  and  without  giving 
their  opinions  at  large,  directed  the  PlaintifiF  to  be  call- 
ed :  and  accordingly  he  was  called,  and  nonsuited. 

Note. — The  Court  gave  no  reasons  for  their  decision  in  this  case, 
so  that  we  know  not  with  absolute  certainly  upon  what  grounds  their 
opinion  was  formed.  Whether  the  Plaintiff  lost  his  right  of  posses- 
sion by  laches,  or  by  the  descent  cast :  Whether  the  possession  of  the 
Defendant  and  those  under  whom  he  claimed,  operated  only  to  bar 
the  Plaintiff's  remedy,  or  likewise  to  perfect  his  own  title',  are  mat- 
ters left  for  conjecture.  A  reference  to  subsequent  cases  may  per- 
haps point  out  to  us  ihe  principles  upon  wliich  it  should  have  been 
decided.  If  the  descent  cast  was  relied  upon  by  the  Court,  I  know 
of  no  decision  in  this  State,  either  gffirming  or  overruling  it,  and  it 
would  be  presumpiuc'US  in  me  to  venture  to  predict  what  would  be 
the  decision  of  our  Judges  upon  a  case  in  which  that  point  should 
arise.  The  question  mi.nht  occur  in  the  case  of  a  pi-rsnn  who  had  ob- 
tained, and  continued  in  po>session  of  lands  for  five  years,  either 
with  or  witliotit  colour  of  title,  and  then  should  die  in  possession  leav- 
ing heirs;  with  the  additional  circumstance,  in  case  where  he  had 
colour  of  title,  thai  his  dealh  should  be  before  the  expiration  of  seven 
years.  Where  the  possessor  had  no  colour  of  title,  I  presume,  ac- 
cording to  the  present  notion  of  such  a  possession  in  this  Sta'r,  his 
heir  would  acquire  no  greater  right  than  he  had  ;  but  if  the  posses- 
sion WRs  accompanied  with  colour  of  title,  it  would  be  for  our  Courts 


16  HATWOOU'S    REPORTS. 

Oct.  l791.  tQ  55y  whether  ihe  Knptish  law  was  f<iiindc<3  upon  doctrines  which  do 
V^^"''''^*'  not  suit  the  ciicimstances  of  this  country,  or  whetlier  il  is  int  equally 
politic  he^f  t"  iji'oteci  at  least  tlie  possessory  ripJit  of  an  heir  claiiiinp; 
utider  such  descent.  If  the  Court,  in  this  cii'^e,  were  infliieiiced  hy 
the  lenirth  of  the  Defendnnt's  possession,  which,  with  that  of  those 
undi't'  u'ho'n  he  cliimrd,  was  said  in  ai'funnent  to  be  thirty  siT  years, 
we  shall  find  'hat  later  decisions  have  put  a  diflf'ert-nt  construction  on 
the  statute  oC  limitations.  It  will  b'-  veinarke.l,  that  the  Defendant's 
poss  ssion  in  this  case,  was  a  niked  one  without  colour  of  title.  In 
the  case  of  Kowtyv.  Ti-win,  2  Hivf.  9,  it  nassi'd  by  HArwoon,  .lud,^e, 

tthat  the  Pl^iintifTneed  not  have  hc-C'i  in  actual  possessioii  within  seven 
',  years:  tha'  his  title  by  deed  or  urant  crives  him  a  '■onstru>"live  posses  ■ion, 

which  preserves  liis  riprht  of  eutr",  until  it  be  destroyed  by  an  actual 
adverse  possession,  contintied  for  seven  years  under  col  'Ur  of  title. 
SIdde  V.  Smith,  pout  24S,  deci^les,  that  when  a  man  has  obtained  a 
g^rant  of  land,  he  has  a  construc'ive  possession  until  an  actual  adverse 
possession  commences,  which  advtrse  possession  tniist  be  a  continued 
one  for  seven  years  before  ihe  junintra'uli  of  the  [grantee  is  lost.  And 
the  case  of  Bnrfefi  v.  Tirner,  2  ffd!/.  9T,  and  of  Stanly  v.  Turner, 
Con.  Tie/).  533.  S.  C.  1  Mnrf)h  14.  sliows,  thitlhe  adverse  possession 
must  he  under  colour  of  title.  Vi  le  the  observations  of  Haiwoop, 
JudfTP,  upon  tlio  case  of  Jlrmoiir  v.  Whitf,  2  Hay  87  ioserted  like- 
wise in  a  note  to  Sianbj  v.  Turner,  X  Mnr  14.  \s  to  wha»  is  a  suffi- 
cient possession  under  the  act,  viik  .indrnmi  v.  .Hvlford,  post  311. 
Gram  V    frinbournf,  2  Ifny.  -56      .Srio'i    ib.  76.      As  'o  cdour  of  title, 

vide V.  .fs/ie,  -.1  ffn/.  1)3.      Pentcf  v   O-mens,  if>itl'2SS'    Evitm  v. 

Saltfrfield,  1  l/Kr.  413  "  Vitl'i  !i.  irs  v  tt-lton's  tieim,  2  Mur.  14  Trus- 
tees  i^f  TTniversilti  v.  Blown,  N  C  Term  Jiep.  13.  Jmes  v.  Putney, 
3  .«»)•.  562.  Tdt^  V.  Saii'lmvfl,  \  H-jilcs  .5.  Campbell  v  MKIrthur, 
2  Hn-wks  33  F.fnscopdl  Churcli  of  Netobern  v.  Ni-taberti  Acudemy,  ihid 
233  Rayner  y  -wife  v.  Capeltart,  ib.  37o.  Tate'a  heirs  v.  Soulfiard, 
S  Hawks  119. 


(  12) 


HALIFAX,  OCTOBER  TERM,  1791. 

Metrit  v.  Wartnoulh. 

DeHniie.  Warmiuith  hail  liirrd  tlip  tipsfro  in  question 
of  Waller;  aixl  Ihe  ui's;in  had  hi-pii  d>Miiaii(!e(I  wliiic  in 
Ills  |)()'<'5('ssiiiii  :  but  before  the  issuint;  of  the  writ  ho  de- 
livered the  ni  j^tii  ti)  Waller,  8i>  titat  liie  ne^i^fo  was  not 
in  the  Defendaiil'.s  |(i>s.sp><si()n  at  the  time  of  th"  action 
bron,u;ht.  Per  Ashk  and  Spknckr,  _yet  a  recovery  inajr 
be  bad  a(;ainst  him,  and  ruled  accordingly,  and  PlaintifT 
had  judgment. 

Cobbs  V.  Fowler. 

Rilled  per  Ashb  a'ld  Spkncek,  that  as  in  this  case 
there  were  five  Defeniiants  in  tiesp.iss,  and  ftnr  bad  been 
taken  and  pleaded  to  ist'ue,  and  the  proi  I'ss  liad  not  con- 
tiuued  against  the  ulher  lor  several  tcnus,  it  was  a  dis- 


haywood's  retorts.  17 

continuance  of  {lie  wlmlc  c.iiise.  Davie  for  tlie  discoiiti-  Mar. ir92. 
nuance,  cited  1  I  d).  G,  win-re  it  is  said,  tiiere  was  tirs-  '"■^~'*"'*-' 
pa^s  aiifaiuHt  fmir,  :ind  ju'Iijinenf  by  dfrmilt  as^aiiisr.  one, 
and  a  writ  of  eiKjniry  awa'ded  to  prevent  a  discotitirui- 
ance.  In  tlie  pee-^ent  case,  a  discontinuance  was  entered 
iiccoi'din.^lv.  tliongli  uiucli  oiipused  by  i.iie  Conusel  on 
the  otbcr  side. 


MORGANTON,  MARCH  TERM,  1792. 
Witlierspoou  v.  Isbell- 

Tlie  words  were  laid  in  the  declaraiir)n  to  iiave  been 
sjxilien  in  some  nioniii  of  tlie  year  I7B8,  and  (he  writ  aji- 
pcai'ed  to  be  dated  above  six  nM)ntl!S  after  that  time,  and 
the  act  of  limitations  was  i)leaded  in  bar;  :ind  on  the 
evidence  it  apiieared  the  words  were  aohially  spoken  a 
considerable  lime  afler  the  time  laid  in  the  dei  laration. 
And  per  V.  illiams,  ilierc  i.s  a  difference  between  laying 
a  faci  aftrr  ilie  time  it  really  happened,  and  before  the 
time  it  rciilly  happened:  in  the  first  case,  the  declaration 
is  supportable,  in  the  second  ir  is  nm — .so  tlie  Plaintiff 
was  nonsuited,  ^iiere  dc  hoc,  et  vide  Salk.  662.  Cro.  J. 
428.  Bull.  35.  L.Ev.-M\.  Co.  Litt  283.  Cro.  Car. 
514,  S28.  I  Sid  308.  Trials  per  pais,  394.  Cro.  J. 
94.  Tmich.  Pre.  264,  549.  5  JIo.  C.  -ZS7.  1.  Jiac.  M. 
102.     2  U.  II.  P.  C.  291. 

State  V.  Grisham. 

Indictment  for  feloniously  and  bni'slariously  breaking 
and  entering  into  the  dwelling-iiouse  of  one  Rice,  and 
feloiii.iiisiy  and  burglariously  stealing  Ihence  a  twenty 
shilling  hill,  &c.  f  lie  jury  find  him  guilty  of  the  larceny,  C  ^^  ) 
but  not  guilty  of  the  bui'glary.  The  Judge  at  first 
thougirt  he  C(nild  not  be  punished,  but  at  length,  seeing 
the  autlnn-iiies  in  H.  H.  P.  C  559,  560,  nf  the  \st  Book, 
and  SO-2,  of  the  2j  B.iok — x\here  it  is  said,  two  or  three 
8e\eral  charges  may  be  contained  in  an  indictment  of 
btiiglary,  and  if  he  be  found  not  guilty  nf  the  burglary, 
but  guilty  of  the  other  charges,  he  may  be  punished  as  if 
lie  were  only  indicti-d  for  them.  He  gave  Judgment  that 
the  prisoner  should  be  branded  in  "In'  band  ;  which  was 
accordingly  done  in  piesence  of  the  Court. 


18  Haywood's  repouts, 

Mar.  1792.      Note.— Vide  Slate  v.  Mien  &  Royster,  4  Ilaiiiks  356,  in  which  llie 
<«,^"V">«/  principle  of  this  decision  is  distinctly  recDgiiized.     See  also,  Slate  v. 

Txciitij,  post  102. 

State  I'.  Joseph  &  Reuben  White. 

An  indictment  for  trespass  in  taking  and  carrying  away  neRi'oes  out 
of  the  possession  of  one,  may  be  sustained,  although  it  may  have 
been  done  at  the  command  of  the  p.irty  who  had  the  real  title  to 
the  property. 

Indictment  fur  trespass,  in  takinj^  and  carrying  away 
two  ne.cjrops  from  and  out  of  tiie  |)ossessioii  and  owner- 
ship of  WIDiani  Daily.  After  the  facts  were  proven  on 
•  the  part  of  tlie  State,  Mr.  Avtrij,  on  the  part  of  tlie  De- 
fendants, oflTercd  to  produce  several  witnesses,  to  prove 
that  the  iM'oiierty  of  tliese  negroes  was  in  one  Saniuel 
Scott,  of  Soiitli-Carolina,  and  that  the  Defendants  had 
taken  them  for  him  and  by  liis  command  :  but  by  his 
Honor  Judge  Williams,  property  here  is  not  tlie  ques- 
tion— the  law  prescribes  a  method  whereby  Scott  might 
Jiave  regained  the  possession  of  that  property  if  he  had  a 
right  to  it— that  is  to  say,  by  a  civil  suit.  Such  metliods 
of  acquiring  [)ossession  as  ihese  Defendants  have  taken, 
»  are  in  violation  of  tlie  rules  of  law,  and  of  evil  example 

to  the  public  ;  and  if  such  kind  of  evidence  should  be  re- 
ceived, would  render  jirnperty  of  this  kind  very  insecure: 
for  great  numbers  of  negroes  have  been  brougiit  hither 
from  other  States,  and  they  may  all  be  taken  and  carried 
away  again  toother  States,  if  there  sliould  be  any  claim- 
ants of  them  there  ;  and  the  honest  purchaser  here  would 
be  left  almost  without  a  remedy.  There  was  a  vci 
diet  for  tiie  State. 

Note. — Vide  State  v.  Flowers  &  Hampton,  1  Car.  Law  Sep.  97  ~ 
3  Murp.  225.     Stale  v.  M'Dowell  W  Guiy,  1  IlajuKs  449. 


SALISBURY,  MARCH  TERM,  1791. 

Billews,  Adm'r.  v.  Patrick  Bogan. 

By  Williams,  Judge.  An  acknowledgment  made  to  an  executor  will 
prevent  the  operation  of  the  statute  of  limitations,  as  well  as  if  made 
to  the  testator.  Ashe,  Judge,  contra.  Verdict  against  evidence  is 
not  sufficient  for  a  new  trial,  if  justice  is  done  by  it. 

In  this  case,  the  debt  had  accrued  above  three  years 
before  the  commencement  of  the  action,  but  there  was  an 
acknowledgment  of  tho  note  having  been  executed  within 


havwood's  heports.  19 

three  years  :  and  per  Williams,  on  a  molion  fur  a  new  Apr.  1792. 
trial,  that  is  sufTirieiil  to  prevent  the  har  by  the  the  sta-  ^-^'^^^^ 
tute,  as  well  in  the  case  of  an  cxei  ntor  as  of  the  party 
himself  who  made,  tlie  contract.  He  niied  upon  Salk. 
29.  PL  19.  Adojited  by  3  Bac.  .')I7.  L.  Ev-  1S\.  1 
Morg.  Ess.  S31. — Bu'  Jtidi^e  Ashe,  contra,  reiyina;  upon 
Sulk.  58.  Greene  k  Crahu  and  L.  Ray.  1 101 — But  by  (  14  "- 
boiii  of  tiie  Judges,  the  jury  in  tliis  case  have  found  tlie 
debt  not  barred  by  tlie  art  of  limitations;  whereas  it  is 
contended  by  the  Counsel,  it  really  was  barred  :  suppose 
lliis  to  be  true,  yet  this  verdict,  althougii  it  be  against 
evidence,  has  done  justice  between  the  parties,  and  there- 
fore the  Court  will  not  grant  a  new  trial — Where  the 
equity  and  justice  of  the  case  is  with  the  vei'dicf,  (he 
circumstance  of  its  being  against  evidence,  is  not  of  it- 
self suflicient  to  set  aside  the  verdict,  and  a  new  trial 
was  refused. 

XoTE The  cise  of  Sard,  ailni'r  v.  Wine,  3  East  408,  fully  sup- 
ports the  opinion  of  Judpfe  Ashe.     Vide  also,  2  Sand.  63.  a  note  b.     1 

Chit.  Plead.  204-5.     2  Vhit.  Plead.  96.     But  see  Bank  of  Ncwbcrn  t. 

Sneed,  3  Himks,  500.  As  to  the  point  of  the  new  trial,  Vide  .lllen  v. 
Joriian,  2  Ilai/.  132.  Jones  v.  Zollicoffer,  2  Jlmvks,  492.  Smith  v.  Shep,- 
pard,  1  Dev.  461. 

HILLSBOROUGH,  APRIL  TERM,  1792. 

V.  Jackson. 

A  person,  who  did  not  make  it  his  ordinary  employment,  undertook 
to  curry  goods  (or  hire  ;  he  is  not  to  be  taken  as  a  common  carrier, 
and  liable  to  the  same  extent,  but  is  bound  only  to  common  pru- 
dence. 

The  Piainlilf,  a  merchant,  employed  the  Defendant, 
for  a  reward,  to  bring  goods  and  merchandize  Irom  Vir- 
ginia, to  Hillsborough,  in  this  State,  in  his  waggon  ;  tbt 
Defendant  received  the  goods  in  Virginia,  and  in  bring- 
ing them  to  Hillsborough,  when  about  to  cross  a  river, 
the  flat  receded  from  one  of  the  fore  ■iv  heels  of  4hc  wag- 
gon, and  it  ran  with  the  goods  into  the  rivt-r,  and  tlic 
goods  were  greatly  damaged  and  impaired  in  value. 
The  Defendant  did  not  make  it  his  common  and  ordina- 
ry em|iloyment  to  carry  goods,  but  was  employed  on  this 
occasion  only.  Moore  for  the  Plaintiff  (at  a  former  term 
when  this  case  was  on  trial)  insisted  that  any  person 
who  undertakes  for  liire  or  reward  to  be  given  him,  to 


20  MAVWOOW's    KEPOftTS. 

Apr.  1793.  carry  j2;ooils  for  aiiDllicr,  is  a  roimnon  carrier,  and  liable 
'■''"^''"'^'  to  iiulrniniiy  his  employer  against  all  damages  that  may 
happen  to  (lie  pfoods,  exreji'  hy  a  public PHemy,  or  ine\i- 
faiile  arddeiit."  Recited  L.  Ray.  915.  Salk.  143.  Bid. 
J\/'isi  Prius,  170.  SV/Zfe.  2S2.  Tatlor  e  contra,  iTisi.stecl 
that  however  the  l;iw  may  be  in  resuert  of  common  car- 
riers, who  nndertake,  like  all  oIIk  r  persons  exerrising 
public  employnjents,  for  skill  and  dili.arenrc  in  their  pro- 
fession, no  such  uiidertakina;  is  im|ilio<l,  or  expected,  from 
one  who  undertakes,  iit  tlie  request  of  another,  to  perform 
a  business  which  he  does  not  make  his  coumioii  employ- 
ment ;  and  he  is  only  answerable  for  dama.a;es  where  lue 
is  guilty  of  gross  neglect.  3  Bl.  Com.  165.  The  .jury 
found  for  the  Di'feudant.  Tiie  Court  granted  a  tnw  tri- 
al, saying  (he  verdict  was  agninsi  Ian,  ns  the  Dereudant, 
by  reason  of  the  reward,  was  to  be  considered  as  a  com- 
mon carrier.  At  this  Ici-in  the  cause  being  again  tried, 
Moore  for  the  PlainliflT,  Ilaywood  for  tiie  Defendant,  who 
said  one  part  of  the  dcfiniiion  of  a  common  carriei-  is, 
(15")  "  that  lie  was  a  jierson  liable  to  be  sued  by  the  Plaintiff, 
if  he  refused  to  carry  tlie  goods  for  him,  for  the  common 
reward  ;  and  is  such  a  person  who  iindertukes  to  serve 
all  persons  indift'erently."  Salk.  249.  1  Ba.  M.  344. 
The  word  common  is  added  t(<  disiinguish  him  liom  one 
wiio  undertakes  for  hire,  on  a  |)artlcular  occasion,  to  carry 
goods  for  anolhei',  who  is  not  answerable  in  all  events, 
but  only  for  neglect.  Cro.  Ja.  262.  'J"he  latter  is  mily 
subject  to  rules  of  law  formed  on  natural  justice,  the  for- 
mer is  liable  to  an  additional  rule  flowing  from  policy 
and  dictated  by  necessity — he  is  a  public  servant,  em- 
ployed by  every  one,  by  those  who  do  not  know  him,  as  well 
as  by  tliosi^  who  do — he  has  frequent  opportunities  of  pro- 
curing himstif  to  be  robbed,  or  of  divesting  him-elf  of 
the  goods  unfairly,  without  a  possibility  of  detection,  and 
the  jiublic  would  have  no  security  unless  inevitable  acci- 
dent or  irresistible  force,  were  his  o>il_\  gi-ounds  of  ex- 
cuse, and  these  to  be  fully  and  fairly  (Mo\cn  by  himself. 
Being  a  person  in  public  employment,  the  law  requiie.'? 
of  him  security  to  the  public  for  his  good  behaviour,  and 
obtains  it  by  imposing  on  him  general  respimsibility.  with 
only  two  exceptions.  Salk.  28Q.  L.  Ray.  9\S.  True 
it  is,  the  books  say  in  some  instances  lliat  persons  carry- 
ing goods  for  hire  are  common  carriers,  and  they  some- 
times speak  of  carriers  only,  without  the  additional 
word  common.     But  these  are  inaccuracies,   and  to  be 


Haywood's  reports.  21 

explained  or  iindprslnod  in  a  raaiincr  wliic'i  accords  vvitli  Apr.  1792. 
the  spirit,  not  ihe  letter  of  iIk-  rase.  A  jifrson  cm-rvjii!^  n-^v^s,/ 
goixis)  Cor  liit'c,  must  be  intended  (if  one  «li<)  makes  it  his 
cointnrtn  eiiipio}  incut,  and  tlie  moans  of  his  liveiilinoil. — 
2  L.  Ray-  9'.  S — and  wliei-e  it  is  said  a  carrier  is  abso- 
Julelv  liable,  nmst  be  understood  ol' a  jjersun  of  that  (h*s- 
criplion.  Sii|i|)(ise  the  FlaintifiT.  in  tlie  pr'esent  case,  had 
gone  to  the  Defiudanl's  with  the  comnioti  price  for  (he 
carriajs^i'  of  e;'»ids  from  Virginia  t<i  Hiilsbori.!ii>;h,  ;tnd 
reqniri'd  of  him  to  proceed  to  Virginia  and  recei\e.  the 
goods,  and  to  hrii;g  them  to  Hillsborough — might  not 
the  Uefei'idant  lia\e  refused  ? — Was  he  bound  to  ntider- 
lake  the  business  assigned  him  ?  Nd,  certHiolv  he  was 
not.  An'd  why?  Because  lie  had  not  undertaken  to 
serve  the  public  generally  ;  or  in  the  words  of  mj  L. 
Bolt,  (Salk.  249.)  "all  persons  indiflTereitly  for  hire  in 
cari'ying  goods  from  place  to  place."  If  he  is  not  thus 
bound,  he  is  not  tliat  cimimon  carrier  spoken  of  in  the 
law  -bonks,  and  in  the  cases  produced,  wlio  is  liable  in  all 
events,  except  for  tin-  acts  of  God,  and  |iul)lic  enemies — 
and  lie  must  then  stand  upon  the  ground  of  a  person 
■whose  common  business  it  is  not,  undertaking  to  do  an 
act  for  another  at  iiis  request  and  for  him — llic  eni|)l!)j'-  f  15  > 
er  knowing  hint  not  to  be  commonly  conversant  in  that 
business,  3  Jil.  Com.  166.  In  other  words,  he  is  not  lia- 
ble to  the  political  rule  before  mentioned,  but  to  the  rule 
oiilv  which  resiilis  from  natural  justitT,  which  ii((>iires 
no  more  of  him  than  common  and  usual  prudence,  and 
diligence  in  the  peilbrmance  of  wliai  he  has  uudeitakij!, 
and  does  not  subject  him  to  answer  for  accidents  wliiih 
liavc  not  happened  for  want  of  that  prudence  and  dili- 
gence. Of  tliis  opinion  were  the  Court,  cotisisliug  of 
Macay  and  Williams,  and  under  their  diitctiuu,  tlic 
jury  found  for  the  Defendant. 

Ni>TE. — Vide,  as  coiToborativeol'this  decision,  Jones's  inw  of  Bnil- 
mfnla,  106.  On  llie  siihj.-ct  of  cnmnion  Ciinieis  in  ihis  bt;sU;,  v  ile 
Sjnvii  V  Farmer's  aJm'r.  2  /lay.  339.  It'iiliamsou  v.  lircnsim,  1  Mw. 
417.     Backhottsc  V.  Snead,  Ibid.  174.     Ad'im  v.  Hay, ."  Mui:  149. 

Berry's  Adm'rs.  w.  Puliiam. 

Ruled  fer  ciirium  upon  argument,  that  letters  of  admi- 
nistration need  not  remain  in  Coui>l.  and  are  not  de- 
inandable  after  issue  joined,  and  cited  hymark's  case,  5 
Jtep.  74. 


22  Haywood's  reports. 

Apr.  irsz.     2<i/y.  That  llie  administrator  may  sue  as  adrainistra- 
'^^"^'"^^  tor  upon  his  own  possession  ;  and  that  it  is  hetfcr  for  him 
to  sue  in  that  manner,  horaiise  then  the  judgment  affords 
evidence  aeraiust  iiim  of  assets. 

5dly.  That  Ihe  act  of  limitations  wilJ  not  run,  where 
A  detrtins  the  chattel  of  B,  hut  only  from  tiie  time  when 
B  knows  where  the  cliattel  is,  and  that  the  same  is  ad- 
versely claimed.     Vide  3  Rep.  79  b. 

Note. — As  to  the  last  point  vide  Ellmore  v.  Milh,  post  360.  Upon 
the  first,  see  the  Ex'rs.  of v.  Oldham,  post  165. 

Moore  v.  Suttril's  Adm'r. 

Doctor  Umstead  was  sued  as  administrator  in  right 
of  his  wife,  a  capias  issued  to  Chatham,  where  he  did  not 
live,  &c.  Objected  b)  J\Ir.  Jiloore,  a  capias  ouglit  not  to 
have  issued,  but  a  summons  ;  and  the  attacliment  is  irre- 
gular, being  founded  on  such  a  capias;  and  the  suit  is 
improperly  brought,  it  ought  to  have  been  against  Mrs. 
Umstead  also,  foi-  suppose  she  had  died,  it  would  have 
abated — if  he  had  died,  it  would  have  abated  also,  as  the 
case  is  circumstanced  :  but  had  it  l)eon  brouglit  against 
botii,  and  he  had  died,  it  would  have  stirvived  against 
Iter.     The  Plaintiff  being  not  ready,  was  nonsuited. 

NoTi:. — Vide  Chitl.  Plead.  43. 

Rhodes  v.  Brownlow- 

Ruled  per  airiam,  that  a  writ  of  false  judgment  is  to 
be  obtained  upon  afHdavits,  which  may  be  opposed  by 
affidavits  on  the  otiier  side  ;  and  the  Court,  upon  consi- 
deration of  the  affidavits,  will  cither  dismiss  tiie  writ,  or 
(  17  )  proceed  to  do  what  else  is  projjer  to  be  done  on  examina- 
tion of  the  proceedings  below  :  and  that  upon  tlie  obtain- 
ing  of  this  writ,  tiie  falsity  of  the  judgment  below  is  to  be 
assigned  in  Ihe  manner  mentioned  in  »Ve/so?j's  Mridg- 
ment.  Verb.  False  Judgment :  And  that  it  differs  from 
the  assignment  of  errors.  Vide  Co.  Litt.  60. 

NoTt. — Vide  .Anonymous,  post  398.  .3non'jmous,  post  469.  Coke 
Ui.  288,  b. 

Allen  V.  Williams,  Garnishee. 

Allen  sued  Hamilton  by  attachment  in  the  County 
Court  of  Gianville, -and  Williams  was  summoned  as  a 
garnishee,  attended  four  days,  and  by  the  record  it  did 
n«t  appear  he  was  solemnly  called  as  the  act  directs,  or 


HAYWOOU'S   REPORTS.  23 

that  any  scL  fa.  had  ever  issued  agaist  him:  but  yet ^P""- ^''^2' 
jiidgmetit  was  entered  a,gaiiist  him.  On  the  part  of  the  ^■^~*''*^ 
Plaintiff  below,  it  was  acitnowledged  there  was  error  in 
tiic  pi'OCccdingH  ;  but  it  was  insistt-d  on  for  iiiin,  thiit  a 
writ  of  ei'ior  should  be  brou.ajht,  and  not  a  certiorari,  as 
had  been  done  in  the  present  instance.  E  contra,  the 
Counsel  for  Williams,  the  garnishee,  cited  Salk.  263, 
and  insislcil  tliat  the  cerliorari  lay  in  this  case,  and  in- 
deed was  the  only  pi'oper  writ,  the  attachment  law  being 
not  according  to  tlie  course  of  the  common  law  ;  and  so 
the  Court  determined,  and  reversed  tiie  judgment  against 
(lie  garnishee. 

Note.— i^rjcrr's  ailm'rs  v.  Elackmore'a  adm'rs.  2  i7a'/.  374.  3  Sand. 
10!,  nctc  1.  " 


HALIFAX  APRIL  TERM,  ir92. 
James  Tiller  Gee  v.  Jarret  Young- 
Case  for  the  use  and  occuj)ation  of  a  plantation.  Young 
had  married  the  widow  of  Drury  Gee,  to  wliom  Drury 
had  devised  the  plantalion  for  her  life,  remainder  to  the 
riainlifl".  She  died  the  first  of  April,  1789,  and  the  De- 
fendant had  then  sown  part  of  the  land  in  oats,  and  other 
parts  he  had  broken  up  and  prepared  for  the  rece[)tion 
uf  Indian  corn.  The  following  cases  were  cited  to  «it, 
2  lust.  81.  Z  E.  C.  M.  464.  2  Bl.  Com.  122,  146,403. 
Co.  Lilt.  55.  5  Rep.  116.  L.  Ev.  242  to  252.  And  by 
Spe.nckk,  who  ddiveied  the  opinion  of  the  Court,  the 
Defendant  ought  to  he  allowed  for  his  labor  in  preparing 
the  ground  for  tilhige,  that  is,  the  ground  intended  for 
Indian  corn  ;  but  yet  the  Plaintiff  is  entitled  to  recover, 
and  recommended  to  the  jury  to  give  a  veidict  for  the 
Plaintiff  for  the  value  of  the  use  of  the  plantalion,  after 
deducting  the  value  of  the  Defendant's  labor :  which  was 
done  accordingly,  and  Plaintiff  had  judgment. 
Note.— Vide  ToU  Law  ofEx'rs.  204. 

Clements  &  Co.  v.  Eason  &  Wright.  (  18  ) 

This  was  an  action  of  covenant,  brought  upon  an  in- 
strument executed  by  two,  and  appearing  to  be  under 
seal,  but  not  attested  by  any  subscribing  witness.  Tnere 
■"■as  no  witness  to  the  execntion,  but  proof  was  offered  by 


24  Haywood's  reports. 

Apr.  1792.  t|,p  pJaintiff.  of  an  arknnwled foment  by  one  of  the  ro- 
'"^'^''^^  veriadtoiw  that  the  iristriiment  was  execiitcil  by  both  •. 
whirli  .Tuili?'*  Spevckr  would  ivit  :»(lnit,  and  ii)  other 
evidence  beinjij  offered,  the  Phiintilf  was  ordered  to  bo 
nonsuited  ;  the  Court  sayinaj,  he  ou^ht  to  Itave  bron^^ht 
liis  artir>n  on  the  case,  an'l  nrnnf  that  ilie  instrument  was 
arkn>wledj^-d,  ii  no  proof  of  tlic  sealing,  and  will  not 
make  it  to  be  a  deed. 

Note  — Ttie  case  of  hwhum  v.  Hull,  overrules  the  objection  that 
case,  and  not  covenant  or  rl-  lit,  is  ttip  proper  ^ictio;i  upon  ;in  unattest- 
ed sealed  instrument.  Pant  193.  The  oilier  o!>jeclion  would  iiow 
be  Hqiially  untenable.  It  is  a  rule  well  establish'd,  tli:it  tlie  sabscrib- 
inp  uiiiess  to  a  deed  or  oiber  seaV  d  instrument,  must  be  produced 
to  pi'ive  its  execution.  Ormichvii'l  v.  B'trk-rr,  1  .llhins,  49.  Mhot 
T.  Plumbe,  1  Doiiff.  236.  This  rule  is  never  departed  from,  except 
the  vfitness  is  dead,  not  to  be  found  after  dil'g-nt  enquiry,  removed 
be^ond  the  process  of  the  Tourl,  become  infamous,  or  interested  by 
opcrHtioH  of  law  Mam  and  H'ife  v.  AT-rs,  1  Bns.  (J  Pul.  360. 
Cngian  v  Jrillinmaon,  1  /Mi/?.  93.  '  Prince  v.  lllackburn.  2  Enst.  250. 
Jtnesy.  Mnaon.  2  Strange  833  Cunliffev.  Seftoii,  2  lias!  IS".  Ndiui 
V.  Briclcell's  iidrn'r.  fco«<  19  Jonts  v  B-inlcl  v,  post  20  Juhnslunv. 
Knight,  I.  Mvrph  293.  i'e%  v  Cl.Tk;A  Hnvks,'265.  Neatly  all  the 
cairs  concur,  under  these  circumstances,  in  re<|uirinp  proof  of  111  •  wit- 
ness'.s  l>:,n(l  writing;,  and  from  the  ease  of  Milwunl  v.  Temple,  1  Camp. 
JV.P  Rep.  375,  it  would  seem  that  the  proof  of  Irs  hand  wriiin);  would 
be  sufficient,  without  proving  the  haml-wiitinR  of  tli<  obli(for.  In  the 
State  n(  N  York,  it  has  b-en  expressly  so  adjudij  d.  Motl  v.Dongh- 
ty,  1  John.  Cu.  230.  Sbiby  v.  Champhn,  4  John.  "i61  Where  there  is 
a  subscribing  witness,  it  has  been  cxuressly  decided,  that  the  acknow- 
ledjjmeni  of  the  oblffor  is  not  sufficient  proiif  of  the  execution  of  the 
bon'l.  Abhoty.  Plnmbe.  and  Cwiliffe  v.  Srflon,  cited  iliove.  Call  v. 
Xhlnning,  4  Eiisl,  53.  Jikmton  v.  Knighl,  2  Mupti.  237-  Where  the 
subscribing'  witness  is  deid.  and  his  liand-wrliinc;  cjnn  it  be  proved, 
proof  of  the  oblinor*s  hao'l  writing  will  be  admitted.  Jn/ies*  adm'ra.v,' 
Blount's  ex'i-s.  1  ffay.  238.  i  there  be  no  stihsrvibing  witness,  or  if 
the  name  of  the  su'iscribins;  witness  can  be  sliown  to  be  in  the  hantt- 
writin^  ot  the  obligor,  or  if  the  subscribing  witness,  upon  being  call- 
ed, cannot  prove  the  execution  of  the  bond,  otiier  evidence  may  be 
Tccei'-ed,  as  of  the  obligor's  hand-writing  or  his  ucknowledgilienl  of 
the  intiMment.  Ingliam  i.  Hall,  ci.ed  aboe.-.  .Mm  v.  Martin,  1 
Car  L i-a  Jiepos  93.  H'llhmit/  v.  Lawvna,  1  Hmcks,  49.  Wiieie  a 
subscribing  witness  leav  s  the  St  .te  in  t  le  exerc  se  of  a  public  duty, 
(as  in  'lie  esse  of  a  nie'  ib'-r  o'  Coiijjress)  his  h»nd-writiiig  may  be 
prov  ■!.  Selbii  v.  Clark,  4  Hawks,  265.  Seealao  1  Philips  on  Evidence, 
419,420.    (3  Am.  Ed.) 

HILLSBOROUGH,  OCTOBER  TERM,  1792. 

Dock  t).  Caswell. 
Debt  on  a  single  hill,  atiil  nayment  pleaded  :  the  bond 
has  been  assigned  by  Uook,  thu  t>biigeee,  to  Bentun,  and 


Haywood's  reports.  25 

liaii  llip  assignment  scratclici!  out  witli  a  pencil— Ob- Oct.  1792. 
jerked,  the  assi;;iiineiit  had  transfrrrcd  the  interest  of  tlic  ^'^''^^'^*>^ 
bond  to  Boiiton,  and  tlicrcfore  liis  exi^cutoivs  were  the 
proprietors.  To  this  it  was  answered,  the  assignors 
having  possession  of  the  bond,  is  evidenre  of  his  having 
pnid  the  money  to  tlie  assignee,  and  that  enables  the  as- 
signor to  sue  in  his  own  name  ;  besides,  tiie  indorsement 
was  strnck  out  Judge  Ashe,  the  |)ossessor  had  a  riglit 
to  strike  out  the  indorsement,  and  now  the  case  is  no 
more  than  tliat  of  a  bond  made  to  the  obligee,  which  lie 
lias  an  uiiiloiibteil  right  to  lerover  llie  money  upon  :  and 
so  a  verdict  was  given  fur  the  I'lainliftand  he  liad  judg- 
ment. 

Note. — Vide  Smith  v.   St.  Laierence,  post  174. — Slmt^  v.  S/tear^ 
/rost  214. — Dickinson  v.  Van  Noordeti,  1  Car.  Law  Rep.  497. 

Tunc  V.  Williams. 

Judgment  had  been  given  for  tiie  Plaintiff  on  a  bond, 
in  the  County  Court  of  Warren,  for  twenty-nine  pounds; 
and  WiiUams  alleging  be  ought  to  have  credits  to  a  con- 
siderable amount,  Plaintift"  agreed  to  come  to  a  settle- 
ment, and  credit  tlic  judgment  witli  sucli  sum  as  lie  had 
paid  :  they  came  to  this  scltlement,  and  credited  all  but 
fifty  shillings  ,•  and  Williams  assumed  to  ptiy  that  .sum 
if  Mr.  Lyiie  had  not  paid  it  for  him  to  the  Plainiift".  Mr. 
Lyne  in  fact  had  not  |)aid  it,  and  a  warrant  was  brought 
upon  this  assumpsit,  and  judgment  for  Plaintiff:  and  the 
suit  removed  by  certiorari  to  this  Court,  Upon  the  evi- 
dence here,  it  was  objt-ded  by  Col.  Davie,  that  there  be- 
ing a  judgment  now  existing  for  this  fifty  sliillings,  no 
action  upon  assumpsit  could  be  brought  for  it ;  and  so 
ruled  tlie  Court  and  nonsuited  the  Plaintiff.  Col.  Buvie  (19) 
cited  Bull.  128,  which  cites  Cro.  J.  2u6. 

Note. — Vide  Bain  v.  Uimt,  3  J/aioks,  592. 

HALIFAX,  OCTOBER  TERM,  1792. 

Nelius  V.  BrickcU's  Administrators. 

Proof  of  tlie  hand-writing  of  the  wife  of  obligor  is  not  admissible.—. 
The  mark  of  a  subscribing  witness,  who  is  dead,  maybe  proved  to 
let  in  testimony  of  the  obligor's  hand-writing. 

Debt  on  a  bond,  and  general  issue  pleaded.     The  bond 
was  attested  by  Nancy  firickell,  the  wife  of  the  obligor, 
4 


3tt  Haywood's  reports. 


\ 


Oct.  1799.  g„j  ijy  ai,(,f|,er  prison  who  made  Itis  mark.  The  Plain- 
^'^'"^''"^^  tiflf'H  Hftoriipy  would  have  proven  the  lianil  writing  of 
Nancy  Brickfll.  reljin_ajon  the  rase  in  Slrn.  p.  4,  w  liere 
a  witness  to  a  hond  having  benmie  the  adnnuistrator  of 
the  oliligco,  proiif  of  his  hand  writing  waa  admitted. — 
Sed  per  curiam,  in  that  casr  the  witness  was  rinupetent 
at  the  time  of  his  attestation,  and  having  become  dis- 
qnalified  whilst  living,  hy  being  a  paiMy  to  the  suit,  his 
hand-writing  was  tiie  best  proof  which  could  reaHonal)ly 
be  expected;  hut  here  the  witness  was  inrompi'tent  from 
the  beginning,  and  if  she  could  not  be  admittfd  as  a  wit- 
ness, nitich  less  ougiil  her  hand-writing  to  be  received 
as  c\idcnce  ;  but  the  Court  saifl,  if  ymi  can  prove  tlicrc 
was  once  such  a  man  as  that  v\hi)  has  matle  his  mark, 
and  that  he  is  now  dead,  or  nut  tu  be  found,  and  also 
that  he  used  to  make  his  mark  in  the  manner  tiiat  it  ap- 
pears to  be  made  to  this  bond,  it  will  he  such  a  presump- 
tion as  will  let  you  info  the  furilicr  pioof  of  flu- hand- 
writing of  the  obligors,  like  the  case  in  Douglass,  p.  93, 
of  Coghlan  v.  fVilliamson.  Wherrupon  the  I'laintiff's 
attorney  proved  there  was  such  a  man,  who  was  alive 
about  the  time  of  the  dale  of  the  h(md,  in  the  neighbor- 
hooil  vvliere  it  was  gi\en,  ami  that  he  was  dead;  and 
that  he  used  to  tnake  his  mark  as  it  appeared  nprni  the  ". 
bond  ;  and  that  the  name  of  the  obligor  was  in  tlie  obli 
gor's  hand-writing:  and  he  bad  a  verdict  and  judguient  •" 
for  the  I'laintilf. 

Note — Vide  Swire  v.  Bell,  5   Term.  Rep.  371. — Xaie  to  Clemen  I i 
and  Co.  V.  Eason  &  Wright,  ante  18. 

Cowpcr  V.  Edwards,  Adm'r.  of  Webb. 

Action  of  debt  against  Oefi-ndant,  naming  him  execu- 
tor. Flea  in  abatement,  that  he  is  administrator  and 
not  exrcnfor,  Plaintilf  moved  to  anrend  upon  the  act  o( 
1790,  and  cited  Strange  890.  when-  after  issue  Joimd, 
the  court  pertnitted  an  amendment,  by  laying  the  as- 
sumpsit to  be  nc'.de  to  the  I'laintilfs  tlitntselves,  instead 
of  its  being  made  to  their  testator:  hot  the  Court  said, 
the  act  of  1790,  is  but  a  re|)elition  of  the  |'ro>isions  be- 
fore made  by  the  acts  of  amendment  and  jeofail,  and  that 
(20}  by  this  act  nothing  could  be  amended,  but  what  the  oilier 
party  might  have  demurred  to,  and  spec  iaily  set  down 
as  the  cause  of  his  d«murrer,  which  was  not  the  case  iu 
the  present  instance.    The  amcndiuent  of  wrlts>  tu  make 


Haywood's  ueports.  27 

that  maititai(ial)Io  wliirh  licfurr  tlip  amendmptit  was  nnt  Apr.  t79J, 
80,  niift'lit  lie  productive  nf  great  liat'(lslii|) ;  f<ir  very  pus-  ^"^'^''^^t^ 
sibly  the  reason  of  llic   bail   i-iiteriiij^  into  a  bail    bond. 
Was  his  kii(i\vlt'dj^-e  Ibal  the  action  on  the  drferlive  wijt 
Could  not  be  supported,  and   then  the  aniciidrnent  would 
entrap  him  i  so  the  motion  was  denied. 

Note. — Our  Judges  have  espounded  tlie  act  of  1790  witli  pfieat  \U 
berality  saying;,  "any  tiling  maybe  amend'-H  at  :Hny  liirft."  Vide 
McClwe  \  Burton  and otiiers,  1  Car.  Laiv  Itep.  i72.  Davia  and aiio- 
(her  V  Ev,.ns,  Ihul.  499.  IVilliuins  v.  Lee's  Heirs,  N.  C  Term  Hep. 
146  Justices  of  Cumden  v.  Sa-wiier,  2  Hcnvhs,  61.  Boyt  v.  Cooper,  2 
Jihirpli.  i86.     If'ikux  &  Co.  v.  Uu-wlcina,  3  Ha-wks,  84. 

Merrit  v.  Meriit,  and  Brehon  v.  Tuton's  Adni'r. 

Pl.iintifls  in  these  respective  suits  bad  recn\cred  judg- 
ments, and  executions  having  been  issmd  against  tlie 
DeCeiidants  respectively,  miUa  bona  were  letanied  :  anil 
thereupon  in  the  latter  ot  these  causes,  the  cleik  had  is- 
sued execution  (or  liaintifts  costs,  against  the  I'lainliff 
liiinselC:  and  the,  proj)ri<ty  of  this  measure  being  nio\ed 
to  the  Court,  they  said  unanimously,  that  the  I'laiutilT 
is  liable  for  iiis  own  costs  «  here  the  Defendant  is  insol- 
vent, and  that  the  Clerk  was  justitiable  in  wlial  lie  had 
done. 

The  original  note  of  this  case  is  «iiIiout  d.ilc,  and  pcvhaps  it  maj" 
I>e  misplaced  in  point  of  time. 

Note — Vide  Superior  Court  OJfics  v.  Lickman,  \J)cr.  Hep.  146. 

HILLSBOROUGH,  APRIL  TERM,  1705. 

Ferguson  and  Wife  v.  Taylor. 

I'laintifT's  wife,  while  sole.  lent  to  Defendant  specie 
certificates,  to  be  relurned  jo  three  weeks,  or  at  any 
time  when  requested.  Tiie  PlaintifiT  did  n<;t  bring  suit 
until  after  the  expiration  of  Ihiee  years  fi'oni  the  end  of 
the  three  weeks:  but  Plaintiff's  pmved  Ta>  lor  had  ac- 
knowledgtd  the  receiving  the  ceriificatcs  wi'.liin  three 
years  before  the  aciimi  brouglit  ;  and  s;od  he  had  not 
settled  for  them,  but  would  pa_>  them  l<i  tlie  administra- 
tor of  Plaintifl's  fust  husband,  one  Lcon.ird.  /Vr  Judge 
MdCAY,  here  is  no  acknowledgment  of  the  debt,  hut  only 
ackniiwledgmeiit  it  was  not  paid — there  must  hi'  an  ac- 
kiiow  ledgment  of  the  debt.  Tlie  aothoiilies  cited,  which 
arc  3  Burr,  1097,  and  Dou^,  652,  went  upon  the  ackiiow- 


2S  uaywood's  repouts. 

Apr.  1753. iej(j,nent  of  the  ilt-bt,  not  of  a  fact  which  shews  it  to  be 
'^'''"^''"^^  iiiisatisfipcl  :  and  the  jiiiy  rmnil  accordingly. 

NuTE — Vidp  Bank  of  Neiiibern  v.  SneeJ,  3  Uutoka  500,  in  which 
the  Counsel  took  an  extended  view  of  all  the  cases  upon  the  suhject, 
and  the  Court  recognised  the  principle  of  those  which  require  an  ac- 
knowledgment of  a  present  subsisting'  debt  to  take  a  case  out  ot  the 
statute. 

Jones  V.  Brinklpy. 

Debt  upon  (wo  bonds  subsrribrd  by  a  witness,  who 
upon  search  could  not  be  found.  This  being  proved  to 
the  Court,  bis  band-writing  was  proved,  and  the  bund 
given  in  evidence. 

•Note. — Vide  note  to  Clements  &  Co.  v.  Eason  U  Wright,  ante  IS. 


(21) 


HALIFAX,  APRIL  TERM,  1793. 
Higbtour  v.  Murray. 

Higlitour  bad  sued  one  Bowers,  who  bad  removed  to 
avoid  bis  creditors,  by  original  attachment  ;  and  Mur- 
ray tiad  replevied  the  property  attached.  Higbtour  ob- 
tained judgment  in  the  County  Court  of  Franklin,  and 
Murray  surrendered  Bowers  as  his  bail  in  discharge  of 
himself.  Higbtour  then  took  bis  sci. /a.  against  Murray, 
to  subject  him  to  the  debt,  alleging  be  had  no  power  to 
surrender,  having  become  bound  fcir  Bowers's  perfor- 
mance of  the  judgment  of  the  Court — the  County  Court 
gave  judgment  for  Murray.  Upon  which  Higbtour  ap- 
pealed, and  now  on  full  argument  of  this  case,  liy  Davie 
on  the  part  of  iMurray,  and  Haywood  foe  Higbtour.  Fer 
Williams  and  Ashe,  Judges,  an  original  attaclimeut  is 
only  intended  to  compel  appearance,  and  where  sureties 
are  given,  they  are  exactly  to  all  purposes  as  bail,  and 
may  surrender  5  so  the  Defendant  bad  judgment  in  his 
favor. 

Note— Vide  Ml  i>fl777,  Rev.  ch.  115,  sec.  30—1  Sand.  67,  note  1. 


EDENTON,  APRIL  TERM,  1793. 

Dccrow  T.  Mono's  Executors. 

.,  Trover.     Tn  this  case  the  Court,  consisting  of  Judges 

4  p" 3t°308  Ashe   and  Wiixiams,  dei  ided   that  Trover  would  lie 
362.  against  executors  lor  a  conversion  in  the  time  of  their 


Haywood's  reports.  29 

testator.    Vide  Cowper  371. — 4  Mo.  404,  and  a  case  at  Sep.  1793. 
WihniiigMii,  May  1796.  y.^->f-*^i^ 

Note. — Vide  note  to  JMcKinnie's  cx'rs.  v.  Oliphant's  ex'rs.  ante  4. 

Snoden  v.  Humphries. 

Tliis  was  an  action  of  debt,  and  verdict  for  tiip  Plain- 
tlflr.  Mdtioii  in  arrest  of  jiiiis^niorn,  and  U(n)ii  ar.ifii'iient 
the  niniion  overruled.  Fn>ni  wliich  .Sfiiienre  tiic  Defen- 
dant apjifalfd,  and  now  on  maiion  of  .Wr.  Hamilton.  t!iat 
tlie  cause  shuTild  stand  not  on  the  leasoiis  in  arrest,  but 
as  a  new  cause  on  tiie  isMie  fo  tlie  countrv  ;  it  was  so 
ruled  per  curiam,  Cinisisting  of  Jiiiiges  Asuii  and  WtL- 
liAMs.     Ex  relatione. 

Note.— Vide  lint  ion  v.  Sheppard,  post  399.— inrin  ci  H'ife  v.  .ir- 
Ihiir's  Ex'rs.  Con.  Hep.  490. — tst.Je  v.  Jackson  &  Davis,  3  Murph. 230. 


MORGANTON,  SEPTEMBER  TERM,  1793. 

Haj'le  V.  Cowan. 

Petition  to  rectify  error  in  a  patent,  heard  by  the 
Court  witliDut  tlie  iniervcntion  of  a  jury  ;  and  the  error 
was  ordered  to  be  rectified  agreeably  to  tlit  act  of  As- 
sembly. This  was  in  tiic  case  of  a  royal  iiatent,  and 
Hajle  had  summoned  four  wilnesses,  the  dispute  being 
only  wheiiier  ilie  first  line  described  in  the  certificate  an- 
nexed, was  really  north  54  dcgiecs  east,  or  south  54  de- 
grees cast.  Mr.  Jiverij  then  moved,  that  as  two  of  these 
witnesses  had  not  been  sworn  at  all,  and  as  there  could 
be  but  one  fact  to  be  established,  th-it  the  Defeiiuant 
should  not  be  subject  to  the  |)aymeni  of  tliesi-  two  wit- 
nesses :  but  per  curiam,  jou  informed  us  a  while  ago, 
yon  had  a  witness  suinmmied  who  does  not  attend  ;  these 
two  witnesses  not  sworn,  might  be  intended  to  counter- 
act his  testimony,  and  your  not  pr()ducii;g  him  might  be 
the  reason  why  they  were  not  called  upon;  we  cannot 
undertake  to  say  tiiey  were  to  prove  the  same  fact  the 
other  two  were  sworn  to — the  motion  denied  per  Judges 
AsHii  and  Macay. 

Note.— Vide  Carpenter  v.  Taylor,  N.  C.  Term  Rep.  265. 


(22) 


30  Haywood's  rbforts. 

Oct.  1793.  HALIFAX  OCTOBER  TERM,  1793. 

'""^"'^^^  BiadforJ  v.  Hill. 

Ib  the  case  of  bounclaries  expressed  in  deeds  .ind  patents,  the  courses 
and  distances  inenlionrd  in  such  deeds  oi-  patents,  must  be  observ- 
ed,  except  when  a  natural  boundary  is  called  for  and  shown,  or 
when  marked  line?  and  corners  can  be  proved  to  have  been  made- 
at  the  original  survey. 

Ejertinent.  The  boimdarips  exprrssed  in  the  deorl  to 
Bustin,  under  whom  Hill  claimed,  win- — Beginning  on 
Fishing  creek,  thente  east  330  poles  to  Pollock's  corner, 
thence  north  sump  number  of  poles  to  Bryant's,  ihence 
along  Bryant's  liire  west  320  polfs  to  the  ri-eek :  Bry- 
ant's cornel"  being  fonr  degr-ees  to  the  east  of  north  from 
Poiloi'k's  corner,  the  line  fi-oni  Pollock's  corner  inter- 
sected Bryant's  line  considernbly  to  the  west  of  Bry- 
ant's corner.  It  was  pi'oven  ili'i-e  wa-i  an  old  marked 
line,  leading  from  Pollock's  to  BrvHiii's  corner,  hut  that , 
in  running  by  the  compass  from  Pollock's  corner  north 
64  degrees  east,  which  was  the  general  course  of  that 
line,  the  marked  line  would  be  sf»metiincs  on  one  side, 
sometimes  on  the  other  side  of  that  I'un  b_>  the  compass; 
whence  it  was  taken  by  the  jury,  to  have  been  run  by 
some  person  after  the  survey  ;  the  trimigli"  formeil  by 
the  said  ni>rth  line,  part  of  Bryam's  line,  and  a  line  from 
Pollock's  corner  to  Bryant's  corner,  included  the  land 
in  dispute.  It  was  insisted  for  the  PlainlifT,  that  the  ex- 
pression of  the  word  iwrth  was  a  mistHke  in  the  survey- 
or, as  the  line  would  gi^e  but  about  half  tlie  com|)leinent 
of  acres  ;  that  it  would  not  measure  the  distance  called 
for  by  the  deed,  as  it  would  itilersect  Bryant's  line  be- 
fore tlie  distance  was  gained,  and  because  from  the  point 
of  its  intersection  witii  Bryant's  line,  along  Bryant's 
line  to  the  cret  k,  would  he  only  130  poles  ;  whereas,  tlie 
deed  called  for  the  wliolr  leiiglli  of  Bryant's  line,  to  wit, 
320  poles.  Add  to  this,  that  the  true  grammatical  con- 
struction of  the  words  used  in  the  patent,  to  Pollock's 
corner,  thence  to  Bryant's,  will  detertninc  the  sense  to 
Bryant's  corner,  not  to  Bryant's  line,  there  being  no 
.  line  antecedently  mentioned.  E  Contra,  it  was  argued 
'  '  by  Darie,  and  agreed  to  by  Judge  Williams,  that  in  all 
cases  where  there  are  no  natural  bouiidaries  called  for, 
the  dispute  must  be  decideil  by  course  and  distance,  or 
by  proving  the  line  and  corner:  that  supposing  the 
marked  line  running  from  Pollock's  to  Bryant's  corner, 
not  to  be  the  line  run  by  the  surveyor,  thcr«  was  nothing 


Haywood's  reports.  31 

but  llie  description  oF  tlie  derd  by  cmrscs  and  distances  Oct.  1793. 
to  direct  iis  :  that  indeed,  if  llie  line  was  terminated  by  ^■^■""^"^ 
a  natural  hoiindaiy,  ilien  if  the  distance  expressed  in  the 
deed  was  stiorter  tlian  tiie  distHiire  to  that  natural  boun- 
darj,  the  distanre  ('xpressed  in  the  deed  would  be  disro- 
gar<ie(l.  It  is  true,  mistakes  liave  been  coininitted  bjr 
survejors,  but  on  acrount  <tf  the  threat  dan.j^er  there 
would  be,  of  conti'oilinj;  deeds  by  parol  testimony,  they 
must  be  adiiercd  to,  unless  in  ca^es  of  vei'y  obvious  mis- 
take, and  wliere  the  evidence  of  the  mistake  is  of  a  na- 
ture hardly  capable  oldereiving  us — as  where  there  was 
a  line,  and  niarkml  trees,  and  a  coi'uer,  which  could  be 
proven  to  he  the  line  run  bv  Ihesui'vejor  ;  in  which  case 
the  mistake  slKuiid  not  prejudice,  for  there  would  be  not 
only  parol  evidence  to  contiol  the  deed,  but  the  afldition- 
al  evidence  also  of  the  marked  line  and  corners  where 
naluie  itself  would  lend  its  aid  to  evince  tlie  error  by 
the  appearance  of  the  line  and  in  provinc:  its  a^e. 

In  this  case,  the  cases  of  Branch  and  Tf'ard,  of  Eaton 
and  Person,  and  of  Person  and  Roiindtree,  were  ciied.— - 
The  case  of  Branch  and  Jyard  was  said  to  be  this — Be- 
ginning on  the  creek,  and  running  north  and  so  round 
to  tiie  creek,  and  along  tliat  to  the  bi-ginning  ;  but  ex- 
pressed in  the  i)atetit  to  be  beginning  on  the  creek,  thence 
running  sonlii  and  so  round  to  the  cicek,  whereby  the 
land  was  tin-own  upon  the  opposite  side  of  the  creek ^ 
but  that  it  was  proven  on  the  trial,  that  there  was  a 
north  line,  and  a  corner  marked  at  the  termination  of  it, 
the  same  that  w  as  mentioned  in  the  patent ;  that  the  line 
was  old  enough  to  have  been  made  when  the  land  was 
first  survejed,  and  that  was  the  line  run  for  the  paten- 
tee by  the  surveyor.  Upon  wliicli  evidence  the  Plaintiff 
recovered.  JEa^oreand  Person  was — that  the  land  in  fact 
was  included  in  a  first,  second  and  third  line,  and  a  river 
for  the  fourth  ;  but  llie  deed,  after  describing  the  first 
line,  called  r.ext  for  a  course  and  distance  which  car- 
ried the  second  line  through  the  body  of  the  land,  leav- 
ing out  a  triangular  piece  included  in  the  second  and 
third  lines  really  run  ;  but  the  second  and  third  lines 
really  run,  were  mai'kfd  and  proven,  and  tlie  corners 
also,  by  |)ersons  present  at  the  running  them  for  the  pa-  C^^) 
tentee:  and  upon  tliat,  by  direction  of  the  Court,  the 
claimant  undi-r  tlie  patentee  recovered.  Person  and 
Koundtree,  it  was  said  was  a  similar  case  to  the  la-^t,  but 
that  these  were  the  only  cases  where  tlie  Court  had  ever 


32  Haywood's  reports. 

Mar.  1794. venfu red  to  «lepart  from  tlie  letter  of  tlie  deed  or  patent; 

^•^~^'^>^  and  the  rlainiant  under  the  |>ateiilee  in  tlie  present  case, 
not  beins;  able  to  prove  a  line  run  by  the  surveyor  for 
the  patentee,  between  these  two  corners,  tliojui-y,  under 
the  tlir(!crion  of  Judge  Williams,  then  the  only  Jndi^e 
in  Court,  f  nind  a  verdict  a^ijainst  liitn.  (Q*  The  otiier 
party  claimed  the  triangular  piece  in  dispute,  by  a  State 
gi-ant  of  a  late  date. 

Note. — Vide  the  case  of  Cherry  v.  Slade's  Atlm'r.  3  Jilurph.  82,  in 
wliicli  tlie  Chiet'-Juatice  makes  an  able  review  of  all  the  cases  upon 
this  subject,  and  I'rom  which  he  deduces  four  rulss  relative  to  boun- 
dary. 1st.  Th  it  whenever  a  natural  boundary  is  called  for,  in  a  pa- 
tent or  deed,  tl?e  line  is  to  terminafeat  it,  however  wide  of  the  coursfi 
called  for,  it  may  be  ;  or  however  short  or  beyond  tlie  distance  spe- 
cifitd.  2d.  Whenever  it  can  be  proved  that  there  was  a  line  actually 
run  by  the  surveyor,  was  murked  and  a  corner  made,  the  party  claiin- 
inn  under  the  patent  or  deed,  shall  hold  accordinjjlv,  nolwithstand. 
ing'  a  mistaken  description  of  the  land  in  the  patent  or  deed.  3d. 
Where  tht  lints  oi  courses  of  an  adjoining  tr-ict  are  called  for  in  a 
deed  or  patent,  the  lines  shall  be  extended  to  them,  without  reg'ard 
to  distance,  provided  those  lines  and  courses  be  sufficiently  estab- 
lished, and  no  other  departure  be  permitted  from  the  words  of  the 
patent  or  deed,  than  such  as  necessity  enforces,  or  a  true  construc- 
tion renders  necessary.  4th.  Where  there  are  no  natural  boundaries 
called  for,  no  marked  trees  or  corners  to  be  found,  nor  the  places 
where  they  once  stood  ascertained  and  identified  by  evidence  :  or 
where  no  lines  or  courses  of  an  adjacent  tract  are  called  for  ;  in  all 
such  cases,  we  are  of  necessity,  confined  to  the  courses  and  distances 
described  in  the  patent  or  <li-ed  Vide  also,  Redilick  and  ITife  v.  Leg- 
gat,  3  Murph.  539.  Orbhon  v.  Morrison,  Ibid  551.  Cimpbel!  v.  Mc- 
Arthur,  2  Ha-wks,  33.  Slade  v.  Green,  Ibid.  218  Tatum  v.  Smoyer, 
Ibid  2j6.  Fruit  v.  JBromer,  Ibid.  337.  Haughton  SJ  Slade  v.  JRitscot 
Si  Gray,  J  Hu-wks,  21  .McNiell  \  Massey,  lh\A.  91.  Tatumd  Max- 
ler  V,  Paine  £J  Sawyer,  4  Haii/ks,  64. 

SALISBURY,  MARCH  TERM,  1794. 

Den  on  dem.  Oiborne  v,  Woodson. 

fn  ejectment,  the  word  tenement  with  metes  and  bounds  is  sufficient- 
ly certain.  Sale  ot  land  by  Sheriff,  when  there  is  sufficient  perso- 
nal property,  is  good  as  to  purchasers.  The  want  of  forty  days 
advertisement,  or  the  land's  not  being'  sold  until  i  day  or  two  after 
the  day  appointed,  will  not  vitiate  the  sale.  Dirlum  by  the  Court, 
if  a  Sherifl"  sells  real  property,  when  there  is  sufficient  personal,  ha 
will  be  liable  to  an  action  by  the  party  grieved,  unless  the  party 
does  not  show  personal  property  sufficient  to  satisfy  the  execution. 

Ejectment.  The  declaratitm  .stated  the  lease  to  be 
of  a  messuage  and  tenement,  bounded  by  metes  Hi  Iniunds 
particularly   expressed,  including  a  tract  of  two  liun- 


HAY\vOO!)'s    RErOli'lS.  33 

dird  and  six'y-tlirrc  acirs  of  latid.  Ohjivtod — this  de- Mai- 1794. 
srri|itioii  is  loo  iincortiiin. — 'riic  word  iciiemeiit  is  sn  un-  ^-^"^''^-^ 
CH'ftaiii.  the  SlieiifT  will  nut  know  how  Ut  dciixcr  posses- 

sidii Bill  pi'r  curium,  iT   is  certain  enough,   tin-  word 

teiiemcnt  mk  Imlcs  all  tilings  wiruli  ina,v  lie  holden  ;  and 
a  tcncnnnt  biiiiiided  in  such  niaimpr  as  di'sciibrd  in  this 
di'claralion,  is  tlie  same  tiling  as  a  parcel  of  land  so  dc- 
sci'ihi'd,  and  as  certain  and  more  legal.  The  Di  leiid- 
anl's  attoi'ney  then  inroriiied  I  he  Court  he  was  prepared 
to  prove,  that  the  SherilV  wli'i  sold  this  hiiid  lo  tin-  Plain- 
tiff iiiider  an  execiilioi)  issuing  friim  Hill^lsoroiigli  Court, 
in  bohail  of  ihf  State,  has  seized  the  land  when  there 
was  personal  estate  enough  in  the  Drfendanl's  posses- 
sion to  salisly  the  debt;  and  also  that  the  yiieiitT  had 
not  s(dd  the  land  on  the  day  appointed  by  the  adveriisc- 
nieiit,  but  a  day  or  two  afterwards  ;  and  also  that  he 
had  not  advertised  lor  the  space  oi'  foi-ty  days  previous 
iltereto,  as  the  law  ref|i)iieil  ;  and  if  the  Court  thought 
tlicse  evi<!enres  material,  that  he  could  produce  tlieiii. — 
i'hereupnn  Judge  Whlivms  said,  if  tlie  SheiilT  sells 
;  imI  property,  wlieii  tliere  is  personal  enoiigli,  it  makes 
ihe  Sheriflf  liable  to  an  action  of  tlie  party  grieved,  but 
will  not  vitiate  the  sale  to  the  imrchaser  ;  otherwise  no 
man  wonlil  be  safe  in  purchasing  lands  at  a  Sheiiff's 
sale,  and  that  he  had  ncv.  r  known  it  required  that  the 
IMainlift' in  such  case,  who  was  the  purchaser,  should 
prove  forty  days  advcrtisrnient,  which  it  certainly  would 
have  been  at  some  time  or  otiier,  if  it  ever  had  been  r  „-  -> 
Ihoiight  material  or  necessary  ;  and  moreover,  the  She-  ^  "  ' 
I'iffmay  lawlully  sell  the  land  of  the  Defemiant,  where 
he  does  not  show  him  personal  property  siitHcient  to  sa- 
tisfy the  execution;  it  would  be  absurd  lo  say.  that  the 
sale  of  land  should  in  no  case  be  good,  vvhere  the  Defen- 
dant had  personal  propei-ty  ;  were  tliis  the  law,  the  De- 
fendant might  conceal  liis  personal  property.  Suppose 
tlie  Sheriff  comes  with  his  execution,  and  the  Defentlaiit 
shuts  his  doors  against  the  Slierilf,  the  Slieriff  cannot 
break  them  open  ;  and  shall  this  disappoint  the  .judg- 
ment creilitor  ?  As  to  his  not  selling  »>n  the  day  ajipoint- 
cd,  but  a  day  or  two  after,  this  is  not  absi>lutely  unlaw- 
ful ;  he  may  adjourn  his  sale,  sometime^  for  the  benefit 
of  the  Defendant,  when  he  expects  a  belter  day  or  nxirc 
bidders,  and  gives  notice  to  tliose  atteniling,  that  the  sale 
will  be  made  at  that  future  day  :  sometimes  indeed  the 
SlierifTinay  have  so  many  goods  to  sell  to  eatisly  the  ex- 
5 


34  Haywood's  reports. 

Mar  1794.  rpuHon,  that  lie  rannot  make  sale  of  all  in  one  day  ;  and 

^"^"^'"^^  sIihII  lie  fhi'ii  be  obliged  to  wait  till  anothrr  ten  nr  forty 

ilays  sb:.ll  intervene?  N",  lie  sliali  rontiiiue  the  sale  by 

adjoMiiinieiil  till  the  whole  be  sold  : — so  tlie  PlainlifT  bad 

a  verilict  ami  judgment. 

Note  — On  the  first  point,  vide  Adams  on  Eject.  22,  according  lo 
which  i>  se.  iTis  thai  in  England  the  woid  tenenjent  is  not  sufficiently 
certain  in  an  ejtctmi-nt,  though  it  does  not  appe;ir  that  the  English 
casi'S  hail  ihe  aiUl'iional  designation  bv  metes  and  bounds,  vide  also 
Burdv.  Clark,  2  Cur.  Lina  He/)  622.  As  to  ihe  other  points,  vi.Ie 
Governor  v.  Curlti  &  oth.rs,  3  Ha-^hs  22^— .let  of  1820,  Rev.  ch.  lOfip, 
and  ihe  case  <Ji  Fulie  v.  Bradley,  3  Haivks  10,  decided  thereon, — Jones 
V.  Ful^liam,  2  Murph.  361. 

Esther  Kenedy  v.  I.saac  Alexander. 

Notice  to  take  a  deposition  at  a  certain  place   in  Tennessee  on  the 
Sth  or  6th  days  of  a  particular  monih,  held  good. 

Tiie  notice  given  by  tlie  PlainiilTof  taking  the  depo- 
^Jj^  yj°!j[siti<)n  of  one  Jones,  wholivetl  near  Kiiowille,  that  it 
471.  w otild  be  taken  on  the  filili  nr  sixth  days  of  sncii  a  month, 

and  it  was  takt  n  on  the  lifih — Ohjected  (or  Delendant : 
that  this  notice  is  not  properly  gi\en,  fur  if  he  might  say 
on  the  filth  or  sixth,  he  might  go  on  and  say,  or  on  the 
7th  or  8ih,  and  for  a  long  time  :  but  per  Jndge  Wii- 
XiAMs,  ill  a  case  at  Newbern  on  the  last  circuit,  one  of 
the  parlies  had  given  notice  of  taking  depositions  at  AI- 
ban>  in  such  a  week;  and  it  was  held  a  good  notice  j 
because  at  so  great  a  distance,  the  taker  of  Ihe  de|iosi- 
tion,  might  not  know  how  to  proctire  the  witnes.s's  at- 
tendance on  any  paiticnlar  day;  the  witness  might  be 
absent,  or  not  be  fiiuini  ;  after  ,going  thiiher,  .some  ac- 
cident might  delay  the  party  intending  to  take  the  depo- 
sition ;  and  he  uiiglit  not  arrixe  on  the  very  day,  and  it 
'noiild  be  extremely  inconvenient,  to  force  him  first  to 
go  thither,  and  know  when  the  witnesses  would  attend, 
and  then  come  back  and  gi>e  notice  of  the  time,  before 
he  c<iuld  take  the  deiiosition — wherefore  in  this  case  let 
the  deposition  be  read,  and  it  was  read  accordingly. 

Ni.TK  — Vide  ffarrin  V  Prterion,  2  Cor.  La-m  Rep.  471 — Bedel!  v 
Stalt  Jiunk,  1  Xftv.  Hep.  483. 


Haywood's  reports.  86 

Den  on  dcm.  of  Tyce  v.  Lfdford.  Mar.  1794. 

Where  a  cause  had  been  depending'  ihree  years  in  the  County,  and 
five  years  in  tlie  Superior  Court,  and  the  PlaiitifTfor  the  las'  three 
years  had  been  uniformly  ready  for  trial,  the  Court  ordered  the 
Defendant  to  pay  the  costs  of  tlie  Plaintiff's  ivitiiessis  during  the 
term  as  tlie  condition  of  another  continuance. 


Defendant  niaile  an  affidavit  in  tlie  iistial  form,  that 
one  Davis  was  a  matciial  witness  for  liini  ;  that  he  had 
been  siiiTimoiied  and  did  not  attenti,  \r.  But  on  tlie 
other  side  it  beiiis;  allcdgi'd,  that  this  cause  liad  been  dc- 
penflin_!f  three  jears  in  the  County  Court,  where  at 
It-nj^th  tlie  Plaintiff  ohtaitied  a  veidict  ;  that  the  Difen- 
dant  then  apfipaled  to  this  Court,  where  the  cause  had 
been  de()etidiiie;  (i\e  years  ;  that  the  Plaintiff  for  the  last 
three  years  had  been  uniformly  pressinj^  for  a  trial,  and 
the  Defemlant  delayiiia;  it  under  vari<ius  pretences  ;  and 
the  act  of  1779  hcinci;  read  and  iiisistcil  on,  which  directs 
that  where  the  Jud.a;e  shall  be  of  opinion  that  the  (larty 
jirayiiig  a  continliaiice,  ouj^lit  not  to  obtain  the  same 
without  payment  of  costs,  that  the  Jiidsje  may  require 
Iiini  to  pay  the  costs  of  that  term  before  planting  the 
continuance  ;  ami  that  (hough  afterwards  he  sliould 
eventually  |>revail,  that  he  should  not  be  allowed  such 
Costs  in  the  taxation  of  costs.  Tiie  Court  in  this  case, 
.Tu«l,a;e  \A'ili,iams  beiii,e;  on  the  bench,  made  such  order  j 
and  the  Defendant  before  the  continuance  granted,  was 
required  to  pay,  ai'd  did  pay  the  costs  tif  the  attendance 
of  all  the  Plaintiff's  witnesses  during;'  the  tei-ni ;  and 
some  of  the  bar  requesting;  to  know  if  this  ua«  intended 
to  be  a  genei-al  rule  for  the  future,  the  Judge  answered 
no — only  for  cases  circumslanced  like  the  present. 
Note. — Vide  Park  v   Coc/ifan  &  others,  post  178. 

Hughes  X'.  Giles.     Trover  for  a  horse. 

A  and  B  both  liave  bills  of  sale  for  a  horse  from  a  person  who  had 
borrowed  him  for  a  particular  purpose  ;  A,  whose  bill  of  sale  is  the 
oldest,  has  him  in  possession,  B  by  some  means  gets  him  from  A, 
and  sells  him  to  C.  A  is  entitled  so  recover  liim  of  C  in  the  action 
of  trover. 

The  case  was,  A  intrusts  the  horse  to  B  for  a  parti- 
cular pill  pose  ;  B  remains  at  Salisbury  sometime,  and 
ctmtracts  debts  with  several  persons,  arid  gives  a  bill  of 
Sale  for  the  horse  to  Hughes,  and  also  to  one  Biem  ;  his 
sale  to  Hughes  is  prior  to  the  date  of  the  bill  of  sale  to 
Brem.    Bretn  by  some  means  gets  possession  of  the 


(26) 


36  UAVWOOD's    UEl'OUl! 


Mar  ir94. liorsR  from  HiigliPH,  wlio  Iiail  liiin,  and  sells  (o  Gilos — 
^'^^■''^^^  ami  now  ainntigst  otlier  tliiit.cjs  it  v\:is  iiisi>ilcil  lor  (iilcs, 
that  Hiigties  <>uj;lil  not  to  have  a  verdict  agaiusi  liiin  and 
reciiMT   daniascs,  for   thai  a  rcroMMV  by   I1m;;Iiis,  vvlio 
was  not  llic   pi'opriotof,  wniild  lie  no  Itar  to  A,  lo  hinder 
him   from   brint;ins;   his  action  at  a  rmure  day  against 
Giles,  and  recovering  also.     Tlie  books  indci-d  say,  that 
lie  wiio  has  a  sperial   propiMty   may   recover  in  this  spe- 
cies of  action,  as  in  the  Case  of  a  carrier',  bailee  or  fni- 
dei',  a  Sheriff  v\lio  lias  seized  goods  in  execution,  or  ilic 
like  ;  but  the  reason  is,  that  those  persons  arc  liable  over 
for  the  goods   to  a  third    person,  and    they   are  allowed 
this  action,  in  order  that  tln-y  may  Iwjvc  it  in  their  power 
C  ^"  }    to  indemnify  themselves,  by  recovering  against  tiie  wrung 
doer,  that  value  wliicli  Ihey   have  to  pay    to  llic  owner  ; 
and  it  is  because  tliey  are  entitled  to  recover,  that  they 
arc  said  to   have  a  special    properly  ;  but  surely  if  the 
cai-rier,  bailee,  &c.  \oluiitarily  sell  or  dispose  of  the  pro- 
perty, they  cannot  afterwards  maintain  an  action  for  it, 
tfiey  are   stopped   by    their  own  act ;  hut  yet  ilieir  sale 
Conveys  no  properly,  because  they  had  none  tiirmselves  j 
and  ill  order  to  convey   an    inierest  or  pr-oper  ty  by  sale, 
the  vendor  must  liav(>  the  general  or  alisolute  jiroperty  j 
a  special  |>ro|)cr'ty  only  enaliles  him  to  sire  a  wroirg  doer, 
not  to  convey  the  propei-iy  ;  because  in  so  doing  he  com- 
mits a  breach  of  trust,  nnless  where  he  Iras  the  property 
for  the  purpose  of  selling  it,  as  in  the  case  of  the  Sheriff, 
arrd  (hen  what  he  does  is  only  good  by  virtue  <if  his  au- 
thority.    Tiiat  the  conveyance  of  such  persons  in  gene- 
ral conveys  no  pr-opei'iy,  is   proved  by  this,   that  if  the 
carriei*.  bailee  or  finder  sells  it,  his  vendee  is   liabli-  to 
the  action  of  the  owner;  but  in  this   case,   B  who  hold 
both  to  Hughes  and  Brein.  though  he  is  liable  to  A's  ac- 
tion, yet  he  cannot   recover  against  either  of  them;  be- 
cause as  to  him  they  are  neither  of  them  wrong  doer'S  j 
and  surely  the  Plaintiff  Hughes  cannot  be  said  to  have  a 
sjiecial   property,   that    dimes   oiilj  by  the  delegation  of 
the  owner,  and  potestas  delegata  uonpotest  delesari.  This 
is  not  in  the  circumstaiues  of  h  cairier,  bailee,  &.c.  or  oC 
any  of  those  peisoiis  who  are  lirtlile  over  by  means  of  a 
trust  ;  and  as  there  is  so  such  liability  over  in  his  case, 
there  is  no  reason    why  the  law   should  give  him  an  ac- 
tion to  recover  against  the  Deleridant.     If  he  should  not 
rpco\ei',   he  can   never-  be   cliMrged  b)  A  :   vvhat  reason 
then  is  there  to  say  Ire  ought  to  recover,  when  he  has  not 


HAYWOOD'S    REPORTS.  oi 

the  general  property,  and  when  tht'ie  is  no  necessify  that  Apr.  1794. 
he  should  be  ileenied  ti>  have  a  special  one  in  order  to  hid  ^-^""-"^-^ 
own  iMdeninificaiiou  ?  But  per  Williams  Judgi,  not- 
wiihstanding  these  ar.qiinients,  tiie  Plainiiff  lias  a  rii^ht 
to  recovery.  Hiij^hes  had  purchased  the  properly  that 
B  had,  and  was  in  poss'-ssion  :  and  is  to  be  consideied 
as  havitis:;  a  spi'cial  property,  niitil  a  better  could  be 
shewn;  and  no  one  hut  tlie  lis^ht  riwiier  could  intert'erc 
with  his  possession,  or  lawfully  deprive  him  o(  ii  ;  this 
is  an  aclvantat;e  which  should  not  be  takeo  Irom  hicn  by 
a  tliird  person — so  the  Plaintift'  had  a  xerdict  and  judg- 
ment. 

Note. — The  case  of  Laspet/re  v.  McFarland,  N.  C.  Term.  Hep.  187, 
dfcidesth:it  trover  caniv)t  bt-  maintained  un  the  pussfSiii'.ii  ot'acli:iitel, 
wh-rc  it  uppe:irs  llial  the  1> g:(l  title  is  in  another,  and  that  'he  Plain- 
tiff las  only  a  trust.  But  See  the  cases  on  this  subject  coll.ctedin 
2  Sand.  47,  a.  no:e  1  the  t;ourt  in  Laspeyre  v.  Mct'urland,  seem  to 
intimate  that  trespass  would  liave  lain  in  that  case,  ;ind  authorities  are 
cited  in  Sunders  to  sh  )W  that  wherever  tfspvss  will  lie  tur  t'l--  WDng- 
tul  takinj;  ol  goods,  trover  will  also  lie  ;  tor  one  ma;  ijualify  but  not 
increase  a  tort. 


HILLSBOROUGH,  Al'RIL  TERM,  17D4, 
Elwick's  E.\'r.s.  r.  Rush. 

demand  is  necessary  to  sust^.in  the  action  of  detinue,  and  it  must  be 
made  by  the  clainiiint  himself,  or  by  some  person  for  him,  ;ind  so 
made  known  at  the  time  of  the  demand.  Said  ur^iiendo  by  the 
Judpfe,  that  the  statute  of  limit -tions  begins  to  run  from  the  time, 
thai  the  Plaintiff  knew  whiie  the  negroes  were,  and  tha.  the  De- 
fendant claimed  them  as  his  own,  although  no  demand  had  been 
made.  ■  ' 

Detinue.  Plaintiff  by  one  Tally,  proved  that  Barton, 
who  "as  a  legatee,  ■(xent  wirh  him  to  Rush,  and  informed 
Rush  that  the  negroes  mentioned  in  the  declaration  were 
of  the  estate  of  Elwick  ;  tliat  he.  Barton,  was  a  legatee, 
01-  heir  of  that  estate  ;  and  that  Co!.  Tayhn-  was  execu- 
tor and  demanded  the  negroes. —  Ef  per  Jiuli^e  Williams, 
a  dtniand  is  necessary  lo  eotille  to  the  action,  and  it 
must  be  made  by  the  PlainlifT,  oi-  hy  some  i>ne  by  his  au- 
thority ;  here  he  did  not  inform  the  Defendant  of  his  au- 
thorifj  at  the  time  of  making  the  demand,  or  say  that 
he  demanded  in  the  name  of  the  I'laintifT;  therefore  it 
was  not  a  good  demand,  and  the  IMaintiff  was  iionsnitpd. 
Note,  In  the  arguing  of  this  case,  Jnilgc  Williams 
said,  the  act  of  limitations  would  run  indetiiiiic,  without 


(28) 


B8 


lIAYWOOn'S    REPORTS. 


Apr.  1794  a  demand,  if  tho  PLiiniifT  kiirw  where  tlie  ne_e;roes  were; 

^^'^^'^sm/  and  that  tliey  were  rlHiined  by  Dtfendaiit  as  his  own, 
and  did  nut  Uv'iug  suit  within  Ihi-  lime  |ii-rsrribed  in  the 
act:  liut  this  he  saiil  arguendo  only.  See  the  case  of 
Berry's  adm'rs.  v.  I'uUam. 

Note. — Tlie  npinion  ot  the  Judge  on  the  first  point  of  this  case  is 
doubled  of  liy  Bayioo'id  in  his  note  to  Z.i'-wis  v.  If'illiams,  post  150,  and 
ovenuhdin  an  annnymous  case,  2  Hay.  1Z6,  &ni  Shepard's  adm'rs. 
V.  lid-wards.  Ibid.  186. 


Waller  v.  Brnddie. 

Certiorari.  The  Plaintiflf  affei'  iihtaining  (he  cerliffrurl 
to  remove  (his  caiiRe  fioin  the  Court  hclow,  into  which 
it  had  come  by  appeal  from  the  jii(le;ni(nt  of  a  Justice  of 
the  Peace,  had  removed  into  South-C.irolina  ;  and  now 
upon  motion  to  the  Court  for  that  purpose,  Judge  Wil- 
XiAMS  u|)on  the  bencli,  i(  was  onlered,  that  unU'ss  by  tho 
next  term  or  before,  the  Plaintiff  put  in  sureties  for  pro- 
secuting this  cause,  and  for  pa>ing  costs  in  case  he  fail 
therein,  that  this  cause  shall  be  dismissed.  The  Judge 
said  upon  (his  occasion,  (iiat  the  act  of  1787.  fretjuenlly 
o|)erated  with  hardship,  and  peculiarly  so,  in  the  case  of 
poor  persons  who  ha<l  suffered  injuries  and  were  unable 
to  give  security  ;  and  in  some  cases,  the  Court  since  that 
act,  bad  permitted  such  |)ersoiis  (ri  sue  \ii  forma  pauperis, 
without  any  such  security  ;  but  as  ihe  act  was  i>asse<l  by 
the  Legislature,  the  Coui't  was  bound  by  it.  '['hat  the 
word  xvril,  in  the  act,  extended  to  Ihe  case  of  a  certiorari, 
as  well  as  to  cases  of  bills  in  equity  ;  in  which  case  it 
had  been  decided,  that  such  security  should  be  gi»cn. 

Note. — The  act  of  1810,  Jiev.  ch.  793,  requires  Security  to  be  ta- 
ken in  the  sami-  manner  as  in  the  case  ol  apprals,  and  I  believe  that 
the  securioes  in  such  cases  are  considered  in  the  sairii  h);ht,  as  sure- 
ties to  m  appeul  bond,  and  where  the  judgment  of  the  Court  b  low 
is  affirmed  in  ihr  Superior  Court,  juds^tn.  nt  may  be  entered  up  «n- 
stanter  against  tlie  Plainuifin  the  certioruri  and  his  securities. 

State  V.  

The  act  of  1793,  authorising;  the  Attorney-General  to  take  jadgment 
ai;ainst  thi-  receivers  of  public  moneys,  by  motion,  and  that  their 
delinquencies  should  be  .sutiicit  ni  notice  ui  them,  was  declared  to 
be  unconstitutional  and  V'>i<l  by  Williams,  Jnd);e,  but  was  .ifter- 
Wards  allowed  by  McCat  and  Ashi^  Judges.  Asbe  hesitating  at  &rst. 

At  the  last  session  of  the  General  Assembly,  it  was 

enacted  that  judgments  might  he  obtained  Uy  the  Attor- 

(  S9  )  ne^-General  agaiuat  ruceivu'S  uf  jtublic  money,  by  mo- 


Haywood's  reports.  39 

tion  ;  and  that  tlii-ir  delinqiipriries  slioiildbc  suffiricnt  no- -'^P'"- ^''^*" 
ticc  to  tlieni  lliat  tliej  were  to  be  [n'oceedetJ  asfaiiisi;  and  ^-^'^'"^^ 
upon  this  act  the  Attoriicy-Geneial  now  moved  for  judg- 
ment against  several,  and  iiroduced  the  act  to  show  how 
he  was  authorised  so  to  do. 

Bnt  Jiidj;e  Williams  stopped  him,  saying  lie  could 
not  pri-niit  Judgments  to  he  taken  in  that  mantiei-.  That 
he  conceived  the  act  to  be  nnrimstitutional,  it  was  to 
condemn  a  man  unheard.  The  12th  aitirle  of  the  Bill 
of  Rights  sajs,  "No  fi-eeman  ought  to  he  taken,  impri- 
soned or  disseised  of  his  freehidd,  librrties  or  property, 
&c.  hut  by  the  law  of  the  land  ;"  and  tliese  words  mean, 
according  to  the  course  of  the  common  law  ;  which  al- 
ways required  the  party  to  be  cited,  and  to  have  a  day 
in  Court  upon  wliich  he  niiglit  appear  and  defend  him- 
self. The  14th  section  declares,  tliat  the  ancient  mode 
of  trial  by  Jury,  is  one  of  tlie  best  securities  of  the  rrghts 
of  the  people,  and  ought  to  lemain  sacred  and  inviola- 
ble. The  ancient  mode  of  trial  by  jury  was,  that  after 
the  Defendant  was  cited,  and  had  pleaded,  and  rhe other 
party  had  denied  his  plea,  or  some  pai-t  of  it,  then  the 
point  in  controversy  was  snhmiited  to  the  derision  of  a 
jury  ;  but  here,  thougl)  a  jury  may  be  sworn,  what  will 
it  he  upon  ?  It  will  be  upon  a  default  taken  against  the 
party  w  ho  <loes  not  apjtear  and  plead,  because  he  has  no 
knowledge  tliat  any  |)i(icee(iings  are  intended  to  be  had 
against  him  :  and  so  in  truth  it  is  not  a  trial  by  jury 
according  to  the  ancient  mode — liie  Defendant  has  no 
o|iporlunity  of  making  any  defensixe  allegations  whiclt 
maj  he  submiited  to  the  decision  of  a  jury  ;  but  the  jury 
here  are  meiely  to  pronounce  what  is  the  sum  to  be  re- 
covered, and  in  tliis  they  are  to  be  governed  by  the  re- 
port of  the  Comptroller,  which  is  in;ide  evidence  against 
the  Defendant  by  another  act  of  Assembly  ;  so  tliat  in 
reality  the  jury  have  nothing  to  determine  on — it  is  niero 
form  for  tlie  s.ikc  of  vxhich  they  are  to  be  impannelhd — 
such  a  trial  is  u  mere  farce.  I  think  the  act  uncnnsti- 
tutional,  and  1  cannot,  as  at  present  advised,  give  my 
assent  to  its  being  carried  int(j  effect — ilie  Judges  of  the 
land  are  a  branch  of  the  government,  and  are  to  admin- 
ister the  constitutional  laws,  not  such  as  are  repugnant 
to  the  constitution  ;  it  is  their  duty  to  resist  an  nncon- 
Stituli(mal  act.  In  fact,  such  an  act  made  by  the  Gene- 
ral Assembly,  who  are  deputed  only  to  make  laws  ia 
confui'tnity  to  the  constitution,  and  within  the  limits  it 


40 


HAYWOOD'S    UEPOllTS. 


Apr.  1794.  prp.snibes,  is  not  any  law  at  all.  Whenever  the  Assem- 
*«-^^^>»^  illy  txceiils  the  limits  of  the  rdiislitiiiiori,  they  act  wiih- 
(  SO  )  out  atitliority,  and  then  their  acts  are  no  more  bindinij; 
than  tiie  arts  of  any  other  assembled  body.  Suppose 
when  met  toj^jetlier,  they  should  pass  an  art  to  continue 
tlte  Assembly  for  two  years — ilu-  rniistitution  says  it 
shall  continue  but  for  one — and  suppose  in  the  .second 
year  they  should  pass  an  art — would  the  Judt^e^  be  bourid 
to  eflTi'ctiiate  it  ?  Suf-eiy  not.  No  more  are  they  bound 
to  regard  an  act  not  njade  atjreeable  to  the  constitution. 
I  am  alone  on  the  bench — I  am  sori-y  to  be  (d)li^ed  to 
prevent  the  e.vccution  of  an  act  whicli  tiie  Lcijislature 
tiiought  necessary  to  be  passed,  and  no  doubt  mij^ht  be 
of  public  utility — but  what  end  is  an  equivalent  for  a 
precedent  si>  dan;;eroiis  i<s  that  wliei'e  the  constitution  i« 
disregarded  by  llie  Legislature,  and  that  disregard  sanc- 
tioned by  the  Judiciary  i  VVIn're  then  is  the  safety  of 
the  people,  or  (lie  freedom  which  the  constitution  meant 
to  secure  ?  One  precedent  begets  another,  one  breach 
will  quickly  be  succeeded  by  anothei-,  and  thus  tlie  giv- 
ing way  in  the  first  instance  to  what  seems  to  be  a  case 
of  public  convenience,  iu  fact  pi-epar'cs  the  way  for  the 
total  overthrow  of  the  ronstituti"U — that  surest  palla- 
dium of  our  rights.  1  cannot  consent  to  it — liut  the  At- 
torney General,  if  he  pleases,  may  again  move  the  sub- 
ject when  we  have  reQectcd  a  little  more  uiion  it. 

Next  day  at  tin-  sitting  of  the  Court,  Hiiywood.  the 
Attorn«'y- General,  moved  the  subject  again,  as  fidlovys  : 
The  clauses  of  the  constitutio:i  that  are  objected  to  the 
validity  of  this  act,  are  declarations  the  jieoplc  Ihoughl 
proper  to  make  of  their  riglils  ;  not  against  a  power 
they  supjiosed  their  own  rrpi-escntatives  might  usurp, 
hut  against  op|)ressiou  and  usurpation  in  general.  The 
second  clause  for  instance,  could  not  be  intended  as  a 
resli'aint  upon  the  Legislature;  it  could  not  be  supposed 
the  Legislature  would  ever  attempt  to  opjiosn  the  right 
of  tiie  people  to  regulate  their  internal  goveruineni  ;  it 
was  intended  to  assert  the  right  of  the  [)eople  against  the 
power  <d' the  British  King  and  I'.irliaineiii,  and  against 
all  oilier  foreign  powers,  who  hereafter  might  claim  a 
right  under  any  pretence  whatsijever,  of  interfering  with 
the  alTiiii'H  of  this  government;  atul  to  serve  as  a  stand- 
ing ami  iiei'petual  memento  to  posterity,  that  the  least 
iiitermeildling  by  any  foreign  jiower  with  the  internal 
policy  of  this  guvei'iiment,  is  an  invasion  of  their  privi- 


Haywood's  nEPORTS.'  41 

leges.  Siicli  also  is  flie  tnanif"st  meaning  of  ilie  5th  Apr  1794. 
section.  Wlio  w('i'e  tliP  crmvention  siis|»icioiis  of  when  ■-^■"^'"^^ 
tliey  (It'ciared,  '•  That  all  |i<»wcr  of  KiisjicrKlins;  laws,  or 
(lie  cxcnitiori  ()f  laws,  by  any  aiitlidiify,  witliniit  the 
consriit  of  tlip  rp]»resentati\('s  of  the  pi-oplc  is  iiijueioiis  (31) 
to  tlieir  rijjhts  and  ou^ht  not  to  he  cxerri.sed  ?"  This  is 
not  a  restraint  u|)on  the  Ieg;islHti\e  |)o\vei'  of  the  Assem- 
bly. From  tlie  experienre  of  what  IkuI  liappened  in  older 
governments,  they  apprehended  that  in  the  virissitndes 
of  human  affairs,  some  anihitious  men  might  usurp  the 
powrr  of  dispinsine:  with  Iav\s.  or  cluim  tlie  right  of  ex- 
errisiria;  such  a  power.  It  Itad  been  frequently  done  in 
tba' government  wbicli  fhey  were  the  most  intimately 
acquainted  with,  to  the  great  oppression  of  the  people. 
They  also  had  other  leasnns — tlie  e\ent  of  that  rlunger- 
ous  %\ar  in  wiiich  they  were  then  engaged,  was  donhtfn!. 
In  case  of  an  adverse  event,  they  were  determined  hy 
this  solemn  declaration,  tliat  the  riglits  of  the  people 
should  bo  |)roclaimed  and  handed  <lown  to  (losterity — 
that  this  solemn  declaration  should  be  a  monument  of 
them,  to  keep  the  genius  of  freedom  alive,  and  to  impel 
posterity  by  this  lesson  left  them  by  their  ancestors,  at 
some  future  day  to  erect  again  the  standard  of  liberty. 
This  I  take  to  be  the  true  meaning  of  tlie  Declaration  of 
Rights  :  and  if  we  attend  to  the  12th  clause,  we  shall 
find  it  was  copied  almost  verbatim  from  the  ;l9th  chap- 
ter of  Magna  Charta,  and  of  the  occasion  of  which  cnir 
Bill  of  Rights  were  very  similar — the  strn.a;«;te  of  the 
peojile  against  oppression.  This  clause  in  both  hasr.ear- 
ly  the  same  nieanin.a; — and  then  the  sjiirit  of  this  clause 
is  in  exact  unison  with  the  other  clauses,  not  intended  to 
restrain  the  Legislature  from  making  tlio  law  of  the 
land,  but  a  declaration  only,  lliat  the  peo|i]e  are  to  be 
governed  by  no  other  than  the  law  of  the  land — per  legem^ 
terrcE,  were  words  used  in  the  ciiarters  granted  by  Hen- 
ry I.  K.  Stephen,  Henry  H.  K.  John  and  Henry  IIL 
whose  confirmation  seemed  finally  to  give  stab'lity  to 
this  charter  :  and  this  term,  in  those  limes  liad  a  certaia 
apjiropriate  meaning,  which  in  latter  periods  came  to  be 
a  little  altered.  In  the  three  former  of  these  reigns,  the 
term  jjer  legem  terroe,  was  empJoyed  in  contradiatinction 
to  the  civil  law,  then  called  x\\c  Italian  law,  having  been 
lately  discovered  and  adopted  in  Italy,  and  which  had 
been,  or  were  then  begun  to  be  introduced  in  F^ngland  in 
exclasion  of  the  Jaws  of  Edward  the  Confessor,  or  in 


42  HAYWOOU'S    KEPOUTS. 

Apr.  1794  other  words  the  law  of  England.     Henry  I.  in  his  char- 
^■'^"'''^'^  fer,  proiiiispd  aition.^  other  thiiii^s  to  confirm  and  ob>ioive 
all  the  laws  of  Edsxard  the  Conlcssor — Gotdsmitli''s  Eng- 
land, 1  vul.  133.     Stephi-n,  his  immidialc successor,  |iio- 
miscd  a  restoration  of  tlie  laws  of  Edward  the  Confes- 
sor in  his  charter — Goldsmitli's  England,    1  vol.  145. — 
(32)     These  laws  of  Edwai-d  the  Confessor,  were  the  ancient 
laws,  usages  and  customs  of  tlie  difterent  parts  of  Kng- 
land,  collected  and  digested   into  one  code.    1  Bl.  Com. 
66,  4  Bl.  Com.  405.     I(  apjjears  from    the  frequent  sti- 
pulations contained  in  tlie  charters  of  tliese  limes,  pro- 
misini^  to  observe  and  restore  these  laws,  tliat  they  had 
been  neglected,  and  some  other   law  introduced  in  their 
place.     Indeed  we  arc  expressly  informed  of  tliis  in  the 
preface  to  the  8fh  report,  page  8,  where  immediately  af- 
ter the  autlior  bus  been  speaking  of  King  Stephen's  cha- 
racter, he  says,  "  King  Stephen  foi  bude  by  public  edict 
that  no  man   should  retain  tiie  laws  of  Italy,   formerly 
brouglit  into  Et:g!and."     In   these  times  therefore,  the 
term  lex  ferrtc,  meant  the  English  law  in  contradistinc- 
tion to  the  laws  of  Italy,  or  of  any  otber  foreign  coun- 
try :  and  in  like  manner  in  our  constitution,   where  the 
Convention  are   doclai-ing  the   rigli's  of  the  people,  and 
use  the  words  of  the  Magna  Charta  of  England,  they 
mean  to  assert  in  general,  that  the  peo|)le  of  Nortb-Ca- 
rolina  have  a  right  to  be  governed  by  their  own  laws, 
and  not  to  be  subject  lo  laws  made  by  any  foreign  power 
ujion  earth  ;  in  like  manner  as  in  the  2d  clause,  iliey  de- 
clare that  the  people  of  tliis  state  ougiit  to  have  the  solo 
and  exclusive  right  of  regulating  the  internal  govern- 
ment and  police  thereof — by  all  which  they  mean  to  vin- 
dicate the  sovereignty  of  this  country,  and  the  inherent 
right  of  the  people   thereof  to   govern   themselves — the 
term  lex  feme,  in   the  times  of  King  John  and  Henry 
111.  began  to  have  a  meaning  additional  to  wiiat  it  had 
in  the  former  reigns  :  these  princes  were  guilty  of  great 
abuses  under  tlie  pretence  of  prerogative — they  had  con- 
fiscated the  estates  of  many  of  their  subjects — they  had 
exiled  and  destroyed  many  also  by  the  power  of  prero- 
gative.    It  is  remarkable  that  in  King  John's  charter  it 
is  stipulated,  that  no  freeman  shall  be  taken,  or  impri- 
soned, or  disseised  of  his  free  tenements  and  liberties, 
or  outlawed,  or  banished,  unless  by  the  legal  Judgment 
of  his  peers,  or  by  the  law  of  the  land  j  and  all  wlii>  suf- 
fered other wiiio  in  this  and  the  two  former  reigns  shall 


Haywood's  reports.  43 

be  rpstored  to  tlicir  ri,e;lits  and  possessions.  1  vol.  Go/(/- Apr.  1794.- 
smitli's  England.  233.  This  iiiainly  evinces  that  the  ■•'^~''~^-^ 
words  per  legem  tcrrce,  here  spoken  of,  iinport  an  acting 
by  a  pret<'rid(>d  jirerogative  aj^ainst  or  v\itliont  the  autho- 
rity of  law.  I  vol.  Goldsmith's  England,  224,  225,  219, 
220  :  and  t'lns  the  ttinn,  law  of  the  land,  is  to  be  nnder- 
stood  in  our  constitution,  beside  the  nicaninaj  already  as- 
ci'ibed  til  it,  to  declare,  tliat  tlie  people  of  this  st.ite  are 
not  to  be  deprived  of  libeity,  property,  the  benefit  of  the 
law,  nor  exiled  from  their  eonnti-y,  by  any  power  what-  rn^^ 
soever,  acting  witiiout  or  contrary  to  the  established  law 
of  the  country,  or  by  any  proceeding  not  directed  or  au- 
thorised by  that  law.  The  meaning  of  the  words  lex  tcr- 
rce  may  therefore  be  thus  shortly  defined — a  law  for  the 
people  of  North  Carolina,  made  or  adopted  by  them- 
selves by  the  intci'venlion  of  their  own  Legislature,— 
This  delinitirm  excludes  the  idea  of  foi'eign  legislation, 
of  royal  or  executive  prerrigative,  and  of  usurped  povverj 
and  leaves  the  power  of  inflicting  punishments,  or  rather 
of  passing  laws  for  that  purpose,  in  their  own  Legislature 
only.  In  tliis  sense,  the  lex  terrcc  of  North-Carolina  at 
present  is  the  wole  body  of  law,  composed  partly  of  the 
common  law,  partly  of  customs,  partly  of  the  arts  of  the 
British  Parliament  received  and  enfoi'ccd  here,  and  part- 
ly of  the  acts  passed  by  our  own  Legislature,  2  Inst.  46. 
If  this  body  of  laws,  is  not  the  lex  terrce.  designated  in 
our  Bill  of  Rights,  but  the  comtmni  law  only,  then  the 
common  law  is  immutable,  and  the  Assembly  cannot  al- 
ter it  by  any  legislative  act.  Should  the  Assembly  in 
any  instance  attempt  to  alter  any  rule  of  property,  with 
respect  to  its  transmission,  descent,  &c.  so  as  to  entitle 
any  other  person  to  it  than  is  entitled  by  the  common 
law,  he  that  is  entitled  by  the  rule  of  the  common  law, 
may  say,  no  man  is  to  be  deprived  of  his  property  or 
rights  but  according  to  the  law  of  the  land,  or  the  cnm- 
mon  law.  If  an  act  not  punishable  by  the  common  law, 
or  punishable  only  in  a  smaller  degiee,  should  be  render- 
ed penal,  or  more  penal  than  it  was  by  the  common  law,  , 
by  any  legislative  act,  the  party  to  be  affected  by  it  might 
say,  i  am  not  to  be  imprisoned,  or  exiled,  or  disseised  of 
my  freehold,  or  in  any  maimer  destroyed,  but  according 
to  the  law  of  the  land,  or  in  other  words  the  commoo 
law.  It  is  easy  to  see  into  what  a  labyrinth  of  confusion 
this  would  lead  us — it  would  contradict  the  very  spirit 
of  the  Confltitution.  which  in  establishing  a  Republic»ii 


44  IIAYWOOU'S    BJ3P0RTS. 

Apr.  1794.  c,„,„,  „}•  Gnvrrnment,  must  have  been  inevitably  led  to 
^■^'"""'^^Torespe  the  great  alteratiDii  tliat  the  new  state  of  things 
would  make  necessary  in  the  great  fabric  of  the  rommon 
law  :  they  must  have  intended  sucli  changes  therein  by 
fTie  legislative  |)ower,  as  would  moi-e  perfectly  adapt  it  to 
the  genius  of  that  species  of  government,  many  of  the 
maxims  of  which  are  sodianieti-ically  opposed  to  all  those 
of  the  common  law  which  liave  any  view  towards  the  sup- 
port of  the  kingly  power,  or  that  of  tlie  nobles.  Such  a 
construction  would  destroy  all  legislative  power  whatso- 
ever, eK(e|)t  that  of  making  laws  in  addition  to  the  com- 
,,.->  mon  law,  and  for  cases  not  provided  for  by  that  law.  It 
*•  •'  would  lop  oR'  the  whide  body  of  the  statute  law  at  one 
stt'cdve,  and  l^ave  us  in  the  most  miserable  condition  that 
can  well  bt-  imagined — alt  capi'al  |)unisiiments  ordained 
by  the  stiitute  law  for  murder,  rape,  arson,  &c.  would  be 
done  away,  and  every  malignant  passion  of  tlie  human  . 
heart  let  loose  to  roam  tlirougii  the  land,  unbridled  by 
fear,  and  free  from  all  manner  of  restraint,  except  those 
very  ineffectual  ones  the  comnn)n  law  imposes.  This 
cannot,  therefore,  be  the  true  meaning  of  tiie  term  law  of 
the  land,  made  use  of  in  the  Bill  of  Rights  ;  it  must  be 
that  which  I  have  already  contended  for,  or  something 
very  similar  to  it ;  and  if  that  be  the  true  meaning  of  the 
term,  then  how  do  these  words  at  all  im|)ly  that  the  Le- 
gislature have  not  a  right  to  pass  such  an  act  as  that 
which  is  the  subject  of  our  present  discussion  ?  Do  they 
not  on  the  other  hand  prove,  that  as  this  is  neither  the 
act  of  any  foreign  Legislature,  nor  the  arbitrary  edict  of 
any  usurped  power  acting  independent  of  the  people,  but 
the  act  of  their  representatives  assembled  for  the  pur- 
pose of  legislation,  and  to  consult  togctiier  for  the  public 
welfare,  is  such  an  act  as  ouglit  to  be  respected  ?  Does 
it  follow,  because  tiie  Constitution  hath  declared  the  right 
of  the  people  to  be  exempted  from  all  foreign  Jurisdiction, 
and  from  all  power  acting  independently  of  the  laws, 
that  their  own  representatives  cannot  make  a  law  which 
^s  useful  and  necessary  for  the  public  good  ?  There  is  no 
part  of  this  Constitution  that  directs  the  process  by  which 
a  suit  shall  be  instituted,  or  carried  on,  and  the  Legisla- 
ture are  therefore  free  to  direct  what  mode  of  proceeding 
in  Courts  they  think  proper  :  and  accordingly  in  a  great 
variety  of  instances,  both  in  England,  after  Magna  Cliar- 
fa,  and  in  this  country,  since  the  Constitution,  judg- 
ments have  been  rendered  against  Defeadanti  withont 


Haywood's  reports.  45 

tlieir  bavina:  Itad  any  jnevious  actual  notice,  and  the ^P""- 1''^*- 
Jiiilgos  liavp  nrxer  inlimated  a  doubt  of  the  constitution-  '•^'^'"*»^ 
aliiy  of  tlipse  |iioceedings.  I  will  instance  in  the  case  of 
statute  meirhant,  statute  staple,  and  recognizance  in  En- 
gland ;  there,  after  the  recognition  and  day  of  payment 
ai'tixes,  no  process  is'^ues  against  the  debtor  to  shew  whe- 
ther he  has  jiaid  or  obtained  a  discharge,  hut  execution 
issues  wiihont  any  further  notice.  1  will  instance  in  tlie 
case  of  outlawries — a  man's  whole  properly  may  be  ta- 
ken away,  and  jet  he  ne\er  may  !ia\e  had  any  ;  ctual  no- 
tice of  his  appearance  in  Court  being  required.  Both  he- 
fore  and  since  the  Revolution  in  this  country,  and  until 
the  year  1783,  bonds,  called  judgment  bonds,  were  in  , 
use  here,  and  many  judgments  were  taken  njion  them  af-  ^  ' 
ter  the  formation  of  this  Constitution,  without  any  notice. 
at  all  to  the  Defendants,  and  the  Judges  did  not  say  it 
was  an  unconstitutional  proceeding;  and  I  su|)pose  it 
would  have  been  practised  to  this  day,  had  it  not  been 
foi-  the  legislative  interposition  in  the  year  1783.  Sec 
Jiev.  Laws,  c.  188.  The  necessity  for  this  interposition, 
j)ioves  tliat  it  was  an  inconvenience  the  Judiciary  could 
not  remedy  upon  the  gi'ound  of  its  unconstitutionality. 
Had  it  been  such,  as  it  was  a  public  evil,  the  Judges 
would  most  certainly  liave  opposed  to  it  the  principles  of 
the  Constitution.  I  would  instance  in  the  case  of  the  at- 
tachment laws — the  property  of  an  absentee  is  seized, 
judgment  is  oblairjed  against  him,  and  his  properly  sold, 
when  perhaps,  and  very  probably  too,  he  has  not  the  least 
intiinalion  of  it.  The  attachment  law,  is  a  law  of  pub- 
lic convenience,  but  yet  it  is  liable  to  all  Ihe  objections 
which  have  been  made  to  tiiis  act  for  taking  judgments  ; 
without  any  previous  notice  actually  given  to  the  Defen- 
dant, a  judgment  by  default  is  taken,  and  the  Jury  is 
sworn  to  ascertain  the  quantum  of  damages,  the  Defen- 
dant not  being  presetit,  and  indeed  knowing  nothing  of  it 
— yet  the  validity  of  Ihe  attachment  law  was  never  ques- 
tioned by  the  Judges,  nor  did  they,  that  1  ever  heard,  ex- 
press the  least  reluctance  to  its  execution.  If  a  bill  in 
equity  is  filed,  and  the  Defendant  cannot  be  found  within 
the  Stall,  to  be  served  with  process,  it  is  published  in 
the  Gazette,  that  such  a  bill  is  filed,  and  if  the  party 
should  not  appear  by  the  prefixed  day,  though  he  hath  no 
,  actual  notice,  yet  a  decree  is  passed  against  him.  If  a 
judgment  is  obtained  against  the  principal,  and  two  set. 
/o's  agaitist  the  bail  are  returned  7iihiL  here  a  judgment 


46  Haywood's  reports. 

Apr.  1794.  passes  a.e;ainst  (lie  bail,  (liough  he  has  no  adual  notice 
^"^^'''^^  of  (his  pioreediii.e;,  and  nfcoiirsc  no  opportunity  to  plead 
in  his  defence  a  matter  to  be  submitt."d  to  a  Jury.  All 
the  confiscation  laws  lately  passed  in  this  country,  what 
are  they  but  proceedings  to  take  away  the  property  of  ab- 
sentees, who  perha|>s  knew  nothing  of  these  intended  pro- 
ceedings? If  to  proceed  to  judgment  before  actual  no- 
tice be  given  to  the  Defendant,  be  against  this  clause  of 
the  Constitution,  how  hath  it  happened  that  so  many  pro- 
ceedings of  tiiis  nature  have  been  cstiiblishod  by  the  uni- 
form decisions  and  practice  of  the  Judiciary  ?  It  may 
be  fairly  inferred,  that  all  tlicse  are  so  many  proofs  tliat 
such  a  proceeding  is  not  unconstitutional,  and  that  the 
Legislature  may  enact  sucli  laws.  But  to  obviate  these 
objections  in  every  shape,  let  it  be  granted  for  the  sake 
(36)  of  argument,  that  the  phrase  lepc  terrce  in  our  Bill  of 
Rights,  really  means  the  common  law,  and  tliat  the  com- 
mon law  requires  notice  to  he  given  to  the  Defendant  be- 
fore the  Plaintiff  can  proceed  to  judgment,  it  also  allows 
an  exception  to  the  rule  when  the  Defendant  voluntarily 
renounces  that  privilege  by  the  nature  of  iiis  contract. — 
It  is  one  of  tl>e  maxims  of  this  very  common  law,  that 
^uilibet  potest  rniundare  juri  pro  se  introdndo.  And 
maxims  being  the  founilations  of  (he  common  law,  when 
they  are  once  declared  by  the  Judges,  are  held  equal  in 
point  of  authority  and  force,  to  acts  of  Parliaaient. — 
Wood's  Inst.  6.  The  maxim  that  ^uUibet  potest,  Sfc.  ex- 
tends even  to  cases  wiiere  the  life  of  the  renouncer  is  con- 
cerned ;  the  accessary  by  renouncing  his  right  not  to  be 
tried  before  the  conviction  of  the  principal,  may  put  him- 
self upon  his  trial,  and  be  hanged  for  it,  Zlast.  501,  183. 
If  the  rule  of  renunciation  extends  thus  far,  it  will  liard- 
ly  be  contended  that  a  man  may  not  renounce  some  lesser 
advantage,  such  as  the  having  of  actual  notice  of  the 
State  being  about  to  proceed  to  judgment  against  him. — 
But  if  tliis  point  be  establi«hed,  yet  the  question  recoils — 
Have  the  receivers  of  public  monies  in  this  State  agreed 
to  renounce  this  privilege  ?  To  pmve  that  they  have, 
we  have  notliing  more  to  do  than  to  refer  to  the  several 
acts  of  tiie  Legislature  for  the  better  security  of  the  re- 
venue, 1784,  Rev.Laws,  c.  219.  Tiie  Legislature  directed 
judgments  to  be  taken  against  delinquents  by  tlic  Trea- 
surer, in  the  name  of  the  Governor,  and  declared  that 
such  judgments  should  be  as  valid  as  if  the  usual  process- 
es of  law  had  been  observed }  the  same  in  elTcct  is  repeated 


HAYWOOD'S    KEPORTS.  47 

in  1 78T,  Rev.  Laws.  c.  269.   Now  surely  every  oflicer  who  Apr.  1794, 
hath  ietei\t(l  liis  a|ipi>intuipn!    ainre  tho  22il  Oct.  1784',  v-*'"''''*^ 
intisf  be  deenieil  to  have  takon  it  undei-  tlic  cinulition  [)i'c- 
scribed  by  these  laws,  and  must  in  the  very  act  of  arcept- 
ing  the  office,  have  consented,  that  in  case  of  delinquency 
he  would  be  subject  to  the  operation  of  tliese  laws;  and 
is  he  not  then  as  inucii  bound  as  in  the  case  of  tlie  Judg- 
ment before  mentioned  ?   And  I  would  remark,  that  these 
acts  of  1784  and  1787,  weie  so  far  from  being  viewed  as 
unconstitutional  by  the  Judiriaiy  at  first,   that  no   scru- 
ple was  e\er  •■iiiertaineil  with  lespect  to  them,  from  tlic 
time  of   passing  the  act  of  1784',   nn'il  some  time  in  the 
year  1788,  hut  in  ihis  interval,  judgments  foi  the  public 
were  unifornily  entrred  as  the  act  directs,  without  actual 
noiice  to  the  Defendant.     The  records  of  this  Court  will 
verify  the  assertion,  and  tlie  gentleman  concerned  foj' tho 
Strtte   at   that  time    can  certify  the  same  thing.     [Mr. 
Moore  was  tiiis  gentleman,  who  was  then  |)resent.]     In     (37^ 
1788  a  judgment  was  moved  for,  and  the  Court  for  the 
firsi  time  enquired,  if  the  Defendant  had  been  served  with 
notice  of  the  motion,  and  being  answered  in  the  negative, 
refused  to   give  Judgment.     Tliis  determination  was  fol- 
lowed by  a  practice  of  giving  notice,  productive  of  enor- 
mous exjience  to  the  State — in  order  to  prevent  tliis  ex- 
pence  for  tlie  future,  and  to  leave  no  doubt  in  tlie  mind  of 
the  Court  with  res|)cct  to  the  will  of  the  Legislature  up- 
on tills  subject,  tiiey  have  unequivocally  ex()ressed  it  in 
the  most  pointed  terms  in  their  act  of  the  last  Session. 
Situe  the  year  1784,  there  have  been  nine  Assemblies  of 
this  State,  the  most  of  tliem  have  approved,  some  have 
amended  tliis  part  of  t!ie  revenue  laws,  and  none  have 
ever  thought  proper  to  repeal  it.     Would  so  many    As- 
semblies, each  of  whom  has  done  something  upon  the  re- 
venue business,  have  suffered  tliosc  clauses  to  have   re- 
mained unrepealed,  had  they  believed  them  to  be  uncon- 
stitutional ?     Are  these  legislative  bodies,  charged  and 
entinstid  by  their  countrymen  with  tiieir  most  important 
conicriis,  to  bf  all  regarded  as  men  who  either  could  not 
discover  the  iinconstitutioiiHlity  of  a  law,  or  were  willing 
to  countenance  it?     VVliat  interest  have  they  in  the  con- 
tinuance of  an  unconstitutional  act  more  than  the  rest  of 
,heir  fellow  citizens?     Had  the  clauses  been   repugnant 
to  the  Consttution,  tliey  would  undoubtedly  have  repeal- 
ed them.     Tlie   Legiblatnre,   thouj;li  frequently  blamed, 
•re  unduubtedly  in  general  entitled  to  this  commenda. 


45  Haywood's  reports. 

Apr,  1794.  tion,  that  they  soek  the  Rood  of  their  country  ;  with  mm 
^"^"^'''^^  elcctcil  as  tliey  are,  and  fi>r  siifh  a  p'-riod.  it  ran  haidly 
be  othiTvvise.  Iti  (I'luhtful  case-!,  tlie  argmnenfuni  ab  in- 
cnnvenienti  is  of  wei^'it,  and  I  roiireive  it  may  he  |)i*(i()ef. 
]y  introduced  on  the  present  occasion  ;  if  the  inronveni- 
ence  ofdeclarin;?  this  act  t^  he  unconstitutional  h*-  cin-- 
siderahic,  I  presume  tliis  consideration  will  not  he  en- 
tirely overlooked  by  the  Court.  It  was  to  avoid  great 
public  inc'invenience  tliat  tliis  act  was  [»as«ed.  The  cx- 
pcnce  of  seudinfif  a  messen2;er  to  all  parts  of  tlie  Stite, 
to  };ivc  notice  to  delinquents,  cost  the  State  annually,  not 
less  llian  one  thousand  pounds;  and  besides  tliis.the  par- 
ties well  koowin:;  it  to  be  the  duty  of  Mie  Treasurer  to 
take  judi^ment  after  the  first  day  of  Ortiher  in  each  year, 
eitlier-  go  out  of  the  neigiiboriiood,  or  conceal  themselves 
about  the  time  when  tiie  messenger  is  expected,  so  that 
after  travelling  a  great  distance,  he  frequently  returns 
without  seeing  any  of  tliem,  but  he  must  still  be  reconi- 
pcnsed  for  his  services  out  of  tlie  pnldic  coffers.  Some- 
rS8)  times  he  is  fortunate  enough  to  serve  tiie  notice  npon<ino 
of  several  parties  to  a  contract,  and  immediately  some 
of  the  family  are  sent  o(f  to  give  notice  to  the  others  that 
the  State  messeiiger  is  about ;  the  consequence  of  which 
is  that  he  cannot  see  the  others  :  and  thus  he  returns, 
liaving  served  one  only,  who  perhaps  of  hitns<'lf  is  not 
able  to  satisfy  the  demand.  Frequently  the  County 
Courts  take  seventeen,  or  eighteen,  or  twenty  securities, 
in  order  to  indemnify  themselves.  Tlie  messenger  must 
serve  all  those  with  notices  ;  to  serve  notice  upon  some 
of  them  only  will  not  do;  if  they  are  to  be  charged  joint- 
ly, they  must  all  be  proceeded  against ;  and  most  fre- 
quently, for  the  reason  Just  mentioned,  it  is  improper  to 
proceed  against  any  one  of  them  alone.  The  public  debt- 
ors also  frequently  move  away  into  other  States,  so  that 
notice  cannot  be  served  upon  tlnm  ;  and  if  they  have  left 
any  property  which  might  be  attached,  the  Treasurer,  or 
his  messenger,  knows  not  where  it  is  ;  noi-  do  they  gene- 
rally receive  any  intelligence  of  the  danger  of  the  pnhlio 
debt,  till  private  creditors  have  swept  away  the  whole 
property.  All  these  evils,  so  detrimental  to  the  public, 
and  which  the  Legislature  have  mft*iifested  so  niucb  anx- 
iety at  diffi  rent  times  to  remove,  will  still  be  continued 
if  the  Court  should  adhere  to  its  opinion  of  yesterday  : 
and  moreover,  by  such  u  derision,  the  Legislature  will 
be  utterly  deprivsd  vf  avcry  power  cumpetent  to  its  re- 


Haywood's  REronxs.  49 

!TiP(ly.  It  will  lie  in  vi\iii  Cor  tliom  to  pass  any  art  simi-  Apr.  1794. 
lar  to  the  present,  or  to  a(Io])t  any  other  mode  but  that  v-^~~>''*w/ 
of  the  old  one,  vvhicli  has  pfevailcil  since  the  year  1788. 
At  this  time  tlierc  are  but  a  few  hnndred  [loiuids  in  the. 
Treasury,  ami  the  sitnalion  of  public  affairs  renders  it 
probable,  that  tlie  Le£;islature  may  be  convened  beXorc 
(he  diiy  of  its  usual  niretini;;' — how  are  they  to  be  sup- 
ported ?  Slioiild  (he  public  einert^encics  require  (he  ail- 
vanccuient  of  any  cnnsideralile  sum,  which  is  not  impro- 
bable, how  is  it  to  be  obtained  if  the  public  juclgMients 
are  not  now  taken  ?  Oi-  how  is  tlie  Treasury  to  be  sup- 
plied for  the  e,\peiices  of  the  next  meetinj^  of  tiie  Assein-' 
bly  ?  I  do  not  ur.a;e  tiie  hitler  ari;uments  as  projiei-iy 
])ossessin,2^  any  sucli  force  as  should  have  an  influence  in 
the  decisions  of  a  consiitutional  <piestton,  but  only  as 
reasons  why  we  should  carefully  examine  the  question 
now  before  us,  before  we  jnoceed  to  reject  this  act  en- 
tirely. While  we  arc  considerina^  tlie  |icrmanent  and 
remote  consequences  of  such  a  decision,  the  immediate 
and  transient  one  sliould  not  entirely  be  ovcriookid,  es- 
j)eeially  as  it  may  put  a  sio[)  to  the  affairs  of  government 
for  some  time,  at  tliis  critical  period,  when  the  approach  (SQ") 
of  war  is  universally  ex[)ected.  It  has  been  said,  amon_^st 
other  objections  to  the  clause  now  in  question,  (hat  this 
is  a  retrospective  law. — Uocs  any  part  of  our  Consdtion 
prohibit  (he  passiiis;  a  retrospective  law?  It  certainly 
does  not.  The  ohjeclion  is  gi-ounded  upon  the  24th  sec- 
tion ofour  Bill  of  liights,  which  prohibits  the  passingot 
an  ex  post  facto  law.  This  i)rohibition  is  essential  to 
fi'cedom  aiid  the  safety  of  individuals.  This  is  a  decla- 
ratimi  (hat  no  powei'  whatsoever  shall  be  entrusted  with 
,  the  arbitrary  disposal  of  (lie  lives  of  our  citizens.  If  the 
whole  people  should  brcome  prejudiced  against  a  fellow- 
citizen,  he  is  not  to  fall  a  sacrifice  to  po|)ular  ( aprice,  or 
rescTitment.  The  lejiresentatives  of  the  peojjle  shall  not  , 
condemn  him  by  any  act  of  attaindei-,  nor  yet  by  declar- 
ing any  foi  nier  act  of  his  to  be  now  capitally  crinunal, 
or  indicd  more  criminal,  than  it  was  at  the  lime  of  its 
commission.  Examples  of  popular  phrcnsy  exhibited  in 
the  ancient  lepiiblics  again.st  some  of  the  people's  best 
friends,  pointed  lo  the  propriety  of  this  regulation  ;  and 
this  clause,  I  admit,  is  in  restraint  of  legislntive  power 
in  this  particular — this  indeed,  prohibits  the  passing  ofa 
retrospeciive  law  so  fai"  as  it  magnifies  the  criminality  of 
a  former  action,  but  it  leaves  the  Legislature  free  to  pass 


5B  HAYWOOO'S    REPORTS. 

Apr.  l~9-l.  ^]|  otiici's,  ami  without  siirli  a  power  no  Goveriinu'nt 
^"^'''''''**^  could  exist  for  any  citris'ulci'alilo  ioiiajtli  of  time,  without 
cxjicriciiciiie:  great  inischipfs.  TIk;  cxpitIsc  of  siirli  a 
povviT  halii  bren  found  frequootly  npcpssary  lieiT  since 
thi-  RfvoUilioii,  and  divers  i-etrospertive  arts.  M'liirh  the 
Le.£;istntiirp  have  passed,  have  hpen  carried  iiitr>  exerii- 
tioii  and  sanctioned  l)_v  the  Juiliciary.  See  Ire.dcWs  Rev. 
2-fi  Sec.  24.  289,  3  18  Sec.  lOO.  386  Sec-  4.  424,  454, 
403,487,  489  Sec.  5.  573  Sec.  6.  7.  9,  10, 11.  16.  Tlie 
fact  is,  the  aftairs  of  Government  will  som'*times,  nay 
often,  i'e(|uirp  the  exercise  of  this  power.  These  instan- 
ces may  serve  to  shew  the  necessity  of  if.  And  it  is  not 
like  an  ex  post  facto  retrnsppctlve  lnw  any  way  incompa- 
tible with  the  safety  of  a  free  people.  'I'he  Cunvention 
^  foresaw  the  necessity  there  wonid    he   for  somplimes  en- 

actinfi;  such  laws,  and  therefoi-e  they  have  been  careful 
to  word  ihc  24tli  section  so  as  not  to  exclude  the  power 
of  passin.!?  a  reti-'ispective  law,  not  fallini;^  within  the  des- 
''^  cription  of  an  ex  post  faciei  law — the  Cmiventioii  meant 
to  leave  it  with  the  Let!;islrtture  to  pass  sucli  laws  when 
the  public  convi-tiiencc  required  it.  I  will  not  stir  this 
point  any  further,  l)ut  conclude  with  expressing  my  hope 
tiiat  the  Uourt  will  suffer  us  to  take  judgment. 

^     -'         Judge  Williams  stiil  adlipred  to  his  opiTijou  of  yes- 
terday, giving  nearly  the  same  reasons  lie  then  gave. 

At  Halifax  Court  a  few  days  after,  the  Attorney-Ge- 
neral again  moved  the  Court,  consisting  of  .lodge  Ashk 
and  Judge  Macay,  and  stated  to  them  tlie  arguments 
wiiich  bad  been  used  at  Hillsiiorough  ;  after  hearing  him 
the  Court  took  time  to  advise  for  a  few  days:  when  tlio 
matter  being  muvrd  again,  .Judge  AsiiK  gave  the  o|)iniun 
of  the  Court,  saying  he  and  Jiiilge  MAt:AY  had  conferred 
together' — that  lor  liimself  lie  bad  had  very  considrrabic 
doubts,  but  that  Judge  Macay  was  very  clear  in  iiis  opi- 
nion (hat  the  judgments  might  be  taken,  and  ha«l  given 
such  strong  reasons,  that  bis  (Judge  Asm:'s)  otijections 
were  vanquished,  and  tbcrelore  that  the  Attorney  Gene- 
ral might  proceed — but  tliat  yet  lie  did  not  very  well 
like  it. — So  the  judgments  were  taken. 

Note. — Vide  Sank  of  Nexvbem  v.  Taylor,  1  Car.  Lrnii  Jiep.  246. 
.5.  V.  2  Murph.  266. 


HAYWOOD^S    REPOUTS. 

Quiiiton  V.  Coiii'tncy. 

A  common  ir.n-l;eeper  is  liiibie  for  any  loss  wliich  liis  guest  may  sup- 
lain  in  his  properly,  except  it  be  by  the  antniy  of  u  servant  or 
compunion  ot  the  ijiiesi  himself,  or  when  llie  guest  is  admitted  np- 

'  on  terms  when  the  inn  is  full.  The  possession  of  money  gives  the 
property  of  it  as  to  any  disposition  which  the  possessor  may  make 
of  it. 

Cnse.  Courtney  was  a  tavern-keeper,  and  Quititon  a 
traveller,  wlio  had  sa(l(lle-lja,:j;s  in  wliich  wire  two  liiin- 
dretl  and  eijrli'cen  dollars  ;  ii(ion  ali^htinj;  at  ihe  itm,  lie, 
gave  (lie  bags  to  a  servant  nf  the  tavern-liec|)er,  but  did 
not  iidorni  either  tiie  servant  or  the  tavern  kcOjicr  lliat 
money  was  in  the  bags  :  these  bags  were  phurd  in  tlic 
bar-roont,  and  were  afterwards  Ibiind  on  the  lot,  ciit 
open,  anil  the  money  gone.  The  declaration  was  in  these 
words,  to-v.  it : 

NOItTIl-CAROI.INA,       ■>  a^    J  rr         i-n- 

HlILSUOnOUGlI   UlSTUlCT.      3  ^  ' 

l)avi<!  Quinton  complains  of  William  Courtney,  jr.  in  custody,  &;c.  * 
lor  thai  wlicreas  according  to  the  laws  in  this  Statr,  oidinary  keepers 
who  keep  ordinaries  to  lodge  travellers  tliirein  who  abide  in  the 
same,  are  bound  to  keep  their  goods  ;ind  cli;ittels  beinij  wiihin  these 
ordinaries,  day  and  nij^ht,  without  diminution  or  loss,  so  tlial  no  loss 
or  damage  might  happen  to  any  such  traveller  or  travellers,  by  rea- 
son of  the  defect  of  due  and  proper  care  by  such  ordinary-keepers  or 
their  s^-rvants  in  these  ordinaries  ;  and  the  said  David,  on  the  thir- 
tieth day  of  January,  in  the  year  of  our  Lord  1793,  in  the  County  of 
Orange,  in  the  district  of  Hillsborough,  being  lodged  in  the  ordinary 
of  the  said  William,  had  a  pair  of  leather  saddle-ba^s,  in  which  were 
contained  the  sum  of  two  hundred  and  eighteen  Spanish  milled  dol- 
l;irs,  of  the  value  of  one  hundred  and  nine  pounds  of  the  current  mo- 
ney of  ihis  Slate,  in  that  ordinary,  and  delivered  the  same  saddle-bags 
and  money  to  the  said  William,  then  and  there  to  be  safely  kept  ; 
nevertheltss  the  said  William,  Icnowii  g  the  said  bags  and  money  to 
be  wldiin  his  said  ordinary,  he  the  said  William,  on  tile  same  day  and 
year  first  aforesaid,  in  the  counly  and  district  aforesaid,  did  so  negli- 
gently keep  the  said  bags  and  mone\ ,  that  the  said  bags  and  money 
for  want  of  safe-keeping  thereof,  by  the  said  William  and  his  servants, 
were  Inst,  stolen  and  c:'.rried  away  from  and  out  ot  ibe  said  ordinary  ; 
whereby  the  said  David  hath  totally  lost  and  become  deprived  from 
thence  hitherto  of  the  said  bags  and  money,  and  of  the  whole  use, 
profit,  benefit  and  value  thereof;  and  the  said  William  hath  not  de- 
livered to  the  said  David  the  said  bags  and  money,  allliough  the  said  (4l) 
William,  on  the  fourteenth  day  of  January,  in  the  .year  of  our  Lord 
1793,  in  the  county  aforesaid,  was  thereto  requested,  but  hitherto 
hath  and  stdl  doth  retuse  so  to  do,  or  to  make  him  any  s^.tisf.ction  for 
the  same  :  whereby  the  said  Davni  saith  he  is  injured  and  endamaged 
to  the  value  of  pounds,  and  therefore  he  brings  this  .suit,  £ic. 

■  And  whereas  also  the  said  David  afterwards,  to-wii.  on  the  same 
day.  and  year  aforesaid,  in  the  county  ami  district  aforesaid,  beiiijj 
lodged  in  the  dwelling  house  of  the  said  William  for  a  certain  time, 
therefore  to  be  paid  to  the  said  William,  ha<l  one  otliei>-pair  of  leather 
^ddle  bags  in  which  were  contained  dther  two  hundred  and  (.ighteen 


r.i' 


52  HAYWOOirS    UEPORTS. 

Ap'  1794.  Spanisli  inilled  dollars,  of  tlie  value  of  oiip  Imndred  ami  nine  pounds 
v.^'V^^  of  the  ciirrecit  money  of  ibis  Slate,   within  the  samt-  dw  Hin:.;-hoiise 
then  and  there  htinp,   and  dehvered  the  same  to  the  raid   William, 
then  and  there  to  be   saf'rly   kept  for  i  certain  time,  received,  to-wit. 
the  sum  of  to  be  paid  by  the  said  David  when  the  said  Wdiiam 

for  the  safe  keeping  thereof;  nevcrthtliss  the  said  WiUiam,  well 
knowin)>  the  premises,  on  the  same  day  and  year  last  aforesaid,  in 
tlie  county  and  district  idbresaid,  so  negligently  kept  the  said  bags 
and  money  that  the  said  bags  and  money,  lor  want  of  such  due  care 
as  aforesaid,  were  lost  from  and  out  of  the  said  dwelling-house  and 
possession  of  him  Ihe  said  WiHi;im  ;  whereby  (he  said  Uavid  hath  to- 
tally  lost  and  been  defrauded  of  the  said  bags  and  money,  and  of  Ihe 
whole  use,  profit,  value  and  benelii  thereof;  and  ihe  jaid  AVilliam 
liath  not  delivered  to  Ihe  said  David  the  saiil  bugs  and  money,  al- 
though th<*  said  AViUiam  on  the  fourteenth  of  January,  in  the  year  of 
our  Lord  1793,  in  the  county  aforesaid,  was  thereto  required,  but 
tiitherto  hath  refused,  and  still  dot'i  refuse  so  to  do  or  to  make  any 
satisfaction  for  tlie  same  ;  whereby  the  said  David  sallh  lie  is  injured 
and  endam.aged  to  the  value  of  pounds,  and  therefore  he  brings 

this  suit,  &c. 

And  whereas  also  the  said  William  afterwards,  to-wit,  on  the  afore- 
said thirteenth  diy  of  JanuKry,  in  the  year  of  our  Lord  1793,  in  the 
county  and  district  aforesaid,  had  undertaken  safely  and  securely  to 
■'  keep  in  his  custody,  one  other  pair  of  leather  saddle-bags,  containing 
vithin  the  same  the  sum  of  two  hundred  and  eighteen  pieces  of  sil- 
ver, coined  money,  commonly  cal'.td  Spanish  milled  dollars,  of  the 
value  of  one  hundred  and  nine  pounds  of  the  current  money  of  this 
State,  being  the  bugs  and  money  of  Ihe  said  David,  and  to  restore  and 
redeliver  the  same  to  the  said  David,  whenever  thereafter  the  said 
David  eliould  request  him  so  to  do,  and  for  thai  purpose  had  received 
the  said  bags  and  money  into  his  custody ;  the  same  William,  his  ser- 
vants and  agents  afterwards,  to  wit,  on  the  same  day  and  j'ear  last 
aforesaid,  in  the  county  and  district  aforesaid,  the  aforesaid  bags  and 
money  so  negligently  and  carelessly  kept  for  want  of  due  care  of  the 
aforesaid  Wiiliaui,  his  servants  and  agents,  the  aforesaid  bags  and 
money  then  and  there  were  stolen  and  carried  away  by  some  person 
unknown,  from  and  out  of  the  custody  and  keeping  of  the  aforesaid 
William  ;  and  by  reason  thereof  the  aforesaid  D.ivid  the  said  bags  and 
money,  and  the  whole  value,  profit  and  benefit  thereof,  hath  totally 
lost  and  been  deprived  of  from  rhence  hitherto ;  and  the  said  Wil- 
liam hath  not  restored  or  re-delivered  the  said  bags  and  m-mey  to  the 
said  D  ivid,  although  the  said  William  afterwards,  to-wit,  on  thefour- 
ternth  day  of  Januaiy,  in  llie  year  aforesaid,  in  the  county  and  dis- 
trict aforesaid,  by  the  said  David  was  thereto  required,  but  hitherlu 
hath  refused  and  still  doth  refuse  so  to  do,  or  to  make  any  satisfaction 
for  the  same,  whereby  the  said  David  saith  he  is  injured  and  endam- 
aged to  the  value  of  pounds,  and  therefore  he  hath  brought  this 
suit,  &c. 

Aim!  the  genrral  isstir  was  pleaded. 
(42)  Hnywood,  fur  the  Phiintiff".  insisted  thaf  iirdinary- 
keepers  weie  liable  for  liie  i<iss  of  g(>r)ds  of  theif  quests 
Committed  to  tlieir  rat-e,  unless  the  loss  happens  by  the 
dpfault  (if  the  sjiiest  himself.  Inns  were  instituted  for 
tlie  lieni  fit  o(  travellers,  that  they  inight  know  wliere  to 
go  when  travelling  amongst  strangers,  without  the  dan- 


IIAYWOOU'S    REPORTS.  53 

ger  of  bpin.sf  robbed  or  dcfi'aiukd  of  tlieir  cftVcts  ;  and  to  Apr.  1*94. 
say  Ibat  tbo  inii-lcrcper  sbould  iitit  be  linblc  for  llic  loss  ^■^"'•''"^^ 
of  liis  guest's  gfiorls,  would  in  effect  destroy  one  of  the 
piincipal  cuds  of  the  institution  of  ions  :  and  if  it  should 
be  cequircd  to  prove  fraud  or  nc!i;lect  upon  the  inn-keeper, 
before  a  guest  rould  recover  for  the  loss  of  iiis  effects, 
this  W'luhl  destroy  the  utility  of  the  institution  in  a  great 
measure  ;  for  frequently  a  stranger  would  not  have  it  in 
his  power  to  prove  the  circumstance — there  is  no  incon- 
venience on  the  other  hand  comjiarahle  to  this.  The 
inn-kfe|(er  has  nothing  to  do  bat  to  be  careful — if  he 
takes  sufficient  care,  in  genei'al  the  goods  will  not  be 
lost.  The  same  answer  may  be  given  to  the  objection 
that  the  guest  did  not  inform  him  of  tiie  contents  of  the 
bags — if  he  takes  sufficient  care,  a  thitrg  of  great  value 
will  no  sooner  be  lost  than  a  tiling  of  small  value  ;  and 
he  ought  to  use  this  care  in  resjtect  to  all  his  guests,  and 
all  the  effects  they  have  with  them,  he  the  value  great 
or  small  ;  and  therefore  there  is  no  necessity  that  he 
should  be  informed  of  the  contents  or  value  of  the  things 
confided  to  his  care,  and  he  cited  S  Rep.  33. — Bac.  Jih. 
182. — Bulkr  73,  of  edit.  1778 Cro.  Jac.  224. 

Mr.  Moore,  for  (he  Defendant,  insisted  in  general  that 
he  could  not  be  made  liable  but  by  means  of  liis  neglect. 
He  cited  Coggs  v.  Bernard,  and  many  other  autliorities  ; 
and  he  argued  that  the  laws  of  England  are  not  in  force 
here,  any  further  than  the  circumstances  of  the  country 
make  them  necessary ;  that  these  kinds  of  frauds  which 
the  laws  of  England  were  so  careful  to  guard  against, 
arc  not  fiequently  practised  here,  and  that  therefore  there 
is  no  necessity  for  the  adojition  of  this  hard  law. 

But  jier  WiLLi.vMS  (the  only  Judge  on  this  circuit,) 
the  law  is  as  laid  <low  n  in  8  B.  33 — Coley^s  case,  and  the 
inn-keeper  is  liable  for  the  goods  lost,  unless  when  the 
guest  is  robbed  by  a  companion  of  his  own  :  and  in  some 
few  other  cases  mentioned  in  Coleifs  case,  and  in  3  Bac. 
M.  185,  as  wlicrc  the  gue.st  is  informed  that  the  house 
is  full,  but  the  traveller  insists  upon  staying,  and  says 
he  will  shift.  And  in  oidcr  to  support  the  action,  it  is 
sufficient  for  the  Plaintiff  to  prove  that  the  Defendant 
kept  a  common  ordinary,  tliat  he  was  a  guest,  that  the 
goods  were  brouglit  to  the  inn,  and  were  in  tlic  care  of  C'^'^) 
the  Defendant,  and  were  lost. 

Tho  Plaintiff  under  this  charge  had  a  verdict  for  one 
hundred  and  nine  pounds,  and  judgment. 


5-1  HAwvoon's  ueports. 

Apr  1794.  Note. — In  this  case,  it  appt-arfJ  Uie  PI  linliff'had  received  this  mo- 
^,^-V^^  ney  (!■  a  Mr.  O'Brien,  of  Tarbrmigli,  toi-  llie  purposi- r)l' ;)iircli»sing 
certificiiies,  u.  Iiicli  he  cuvenunled  in  wriiinjf  (o  deliver  to  O'liri.  ii,  or 
to  retiini  him  the  imney  ;  ;ind  it  was  iiisislcd  upim  by  Mr.  .Hoorf, 
that  ttie  money  in  this  case  was  llie  proper'y  of  O'Brien,  and  tnat 
Qiiintnn  only  liad  it  as  liis  aj^ent  or  scrv  mt ;  and  that  therefore  the 
injury,  if  any,  had  been  done  to  O'Brien  ami  noi  to  t^uinlon  ;  and  that 
O'Brien  ought  to  have  brought  the  artion.  Bin  e  contra,  it  «■  is  insist- 
ed, that  siriciK  speak'Mif,  there  is  no  such  ihinsjas  property  in  mon  y, 
or  that  if  there  was,  the  poss.-ssion  always  jjave  ilie  properiy  to  the 
possessor,  and  that  an  action  which  affirms  property  in  the  Plaintiflj 
could  not  be  broushl  for  it.  L.  Ec.  262  -Co.  Lilt.  ".'86.  b.-S.Jk.  284. 
£</)er  Williams,  whoever  lias  the  poss-ssion  of  money,  has  the 
property  of  it :  he  miy  use  it,  :ind  disiose  of  it  us  he  pleases,  with- 
out, and  even  agains;  the  consent  and  directions  of  him  who  enlnisted 
liim  with  it;  and  whoevr  receives  the  money  from  the  trustee, 
though  he  knows  it  was  entrusted  to  him  lor  a  difi'crent  purpose, 
cannot  be  compelled  to  restore  it  and  the  ajjent  who  abuses  his  trust' 
<        in  this  respect,  is  only  liable  to  damage  by  means  of  his  contract. 

N'jTl. — Upon  the  possession  of  money  giving  the  property,  see 
CUir}j  V.  Allis'^n,  poiC  111. 

Stiitc  V.  Joyce. 

This  was  au  iinlictineiit  against  flie  SlirriflTof  Rock- 
ingliain  for  a  mistloint'anof  iti  making  a  t'alsr^  return  to 
an  executimi.  It  apppared  in  pvidcnce,  that  the  execu- 
tion against  one  Nathaniel  Williams,  for  levying  a  cer- 
tain sum  to  satisfy  Robinson  Munifm-d,  the  IMaintiff, 
was  put  into  his  hands  to  he  executed  in  due  time;  that 
he  lex  led  on  ptoperly  nioie  than  sufficient  to  satisfy  the 
debt  and  costs,  and  appointed  a  day  of  sale,  at  which 
time  there  was  but  one  bidder  ;  and  he  believing,  as  ha- 
ving been  so  adxised,  liiat  a  sale  could  not  legally  bo 
made,  nnli-ss  tliere  svere  two  bidders  at  least,  returned 
upon  the  execution,  that  he  had  not  sold  for  want  of  bid- 
dci's.  Fi>r  this  he  was  indicted,  ami  now  upon  the  trial, 
it  was  ruled  clearly  by  Jud;;e  Williams,  that  one  bid- 
der at  a  Sherifl["'s  sale  is  snOicient  ;  saying  if  it  was  not 
so,  noexecuiii>n  <  onld  ever  be  satisfied  wiiere  the  Defen- 
dant conhl  procure  a  friend  to  attend  and  bid  more  titan 
the  |)roperty  was  worth  at  the  first  bid. — Uc  was  con- 
victeil  and  fined. 

NoTi.— Vide  Slate  v.  Johnston,  post  295. 


Haywood's  repokTS.  55 

HALIFAX,  AFRIL  TERM,  1794.  A^..i794. 

Den  oil  (lein.  of  Blake  Bilker  v.  Webb. 

I'er  Macav,  Jiirlfre. — Tlic  statute  Jtli  George  2<l,  ch.  7,  provides  for 
the  sale  of  land  for  debts,  and  llic  nukinij  tliem  liable  for  all  jiist 
debts  in  the  ha  .ds  of  the  h.ir,  but  does  not  alter  the  distinction 
between  real  and  persunal  f  state  ;  real  descends  to  the  heirs,  per- 
sonal uoes  to  the  executiirs  ;  the  lands  in  liands^of  the  heirs  cannot 
be  affecied  by  a  jndgment  against  th.-  executors,  no  more  than  the 
personal  estate  ui  the  hand-  of  the  executors,  can  be  ad'ected  by  a 
judffment  against  the  heirs.  But  per  As.ib,  Judge. — The  statute 
meant  to  make  lands  lial>le  to  the  p  lymenl  of  debts  ;  and  as  to  the 
payment  of  debts,  are  lobe  proceeded  against  as  |iersoiial  chiliels. 
They  descend  to  ihe  heir  charge. ble  with  all  such  debts  as  may 
he  reC'ivered  against  the  executors.  Wicliams,  Judge,  (ni  a  pre- 
vious case  eX|jressed  an  opinion  similar  to  Macat's. 
(i'a  deed  be  lost  and  its  lonncr  existence  proved,  a  coi.y,  and  If  no 
ciijjy,  parol  evidence  may  be  given  of  its  contents.  t 

'I'his  was  an  iirtiun  of  tiesjiass  in  ejccfmiMit,  whofcin 
the  Piaiiitirrilt'iiiiCifl  his  title  as  fallows:  This  liiiid  was 
mMiiti'd  the  '2(1  (lay  of  Ajiril,  1741,   by  l!ie  Kai'l  Gtaii-     (44) 
vilic  to  yeiiiamii)  iSl'tiiiiiiie  ;  by  him  the  17lh  Ociober, 
ir4.5,    to  N'i'illiain  Rinchtri  ;  by  !iim   the    ISth   Ooidbee, 

1746,  to    David  tloijpci' ;  by    bini    the   12!li  Septeiriber, 

1747.  to  (Hie  Caitei  ;  tlie  3d  September,  1760,  it  was 
Ci'.;iveye(l  by  oiie  Mays  to  De«ey,  wliii  li  i-oeite=!  a  li'-ed 
ffom  Caiicr  to  IJays  ;  by  Dewey  to  Suiait,  the  14tl» 
Febiiiaiy,  1765  ;  by  Smart  to  Jo.sepii  Ldii;:;,  Ihe  20l!i 
July,  1768:  and  by  Long  to  lllake  Baker,  the  elder,  tlie 
iGlh  Decetnber,  1768;'\vbieh  Blake  Baker,  tlie  cider, 
was  the  father  of  the  les.sor  of  the  Piaiiitiif,  to  wli'iin  the 
PiaiiitifTis  heir  at  law  ;  asisi  the  said  Blake  Briker  the 
elder,  was  posse.ssetl.  and  dietl  pos.sessed  iti  1769.  It  was 
farther  proven  oji  the  part  of  the  Plaiiilift',  that  (Jarier 
was  in  possession  for  seven  years  and  iijjwards,  and  also 
that  after  his  possession,  the  saiil  Uays  was  in  pusses- 
sion  for  a  prcal  len.j^tli  of  time  before  he  sold  to  Dewey, 
and  used  the  land  by  selfin;^  litiiljcr  ofT  ii  :  that  Dewey 
was  possessed  two  or  ti>cee  yrars,  and  that  Loii.!^  was 
j)ossest>ed  for  soii;c  time;  and  that  diiriiijj  the  time  of 
Hay's  possession,  Carter  frequently  declared  that  he  had 
conveyed  it  to  Hays.     The  Defendant  on  bis  jiart  set  up 

'  a  title  as  follows  :  That  one  James  M'Neil  obiained  a 
jud.^ment  for  debt  and  costs,  a.qaiiist  tlie  executurs  of  - 
Blake  Baker,  the  elder,  anil  took  out  execution  tliereoii, 
tested  in  Apiii,  1772;  wiiiib  e:;etuiion  conimandid  (lie 
SherilT,  tiiat  he  should  levy  of  the  soods  and  chattels, 
lan(l.s  and  tenements  in  the  hands  of  the  executors,  &c. 


56  Haywood's  reports. 

Apr.  1794.  And  that  by  virtue  thereof  tlie  Shpriff  sold  the  lands  iu 
'~''"'^'''*^  quostioii,  and  executed  a  deed  for  the  same,  hiMrina^  date 
the  22il  February,  1773,  to  Joseph  Mrmtfort,  who  liy  his 
will  devised  that  his  executors  shouhl  sell ;  wlio  sold  ac- 
coriliiis;ly  to  one  Wilburn,  who  s(dd  to  J.  Wehh,  who 
died  leaving  the  Defendant  his  heir  at  law.  Thejuilg- 
ment  was  obtained  in  April,  1772,  anl  two  pleas  had 
been  pleaded  by  tlie  exccut<»i's,  to-\vit,  plcne  administra- 
vit  and  non  assiimpsit,  and  the  jury  gave  their  verdict 
upon  the  other  plea  only,  and  there  was  a  sn^^^jestion  on 
record  that  tliere  were  lands,  &c.  Tlie  deed  to  Motitfort, 
when  produced,  described  the  land  thus — "  K.nown  by 
the  name  of  Hays,  formerly  given  by  James  Carter  to 
James  Hays." 

Hayxvood,  for  the  Plaintiff. — It  is  a  rule  of  law  well 
established,  that  in  ejectment,  the  threat  question  always 
is,  who  hath  the  jus  possessioiiis.  It  is  this  alone  in  the 
action  of  ejectment,  that  can  entitle  the  Plaintiff  to  reco- 
ver ,'  and  by  whatever  means  it  can  be  shewn  that  the 
/jus  pnssessionis  is  lost,  by  the  same  means  you  destroy 
the  PiainlifT's  right  to  recover.  It  is  also  a  rule  as  well 
('45")  established,  that  wherever  he  wlio  had  the  right  of  pos- 
session, hath  lost  it,  he  who  hath  tlie  possession  hatli 
gained  it,  and  may  make  title  tlirreby.  It  operates  not 
only  negatively  as  a  bar  to  the  Plaintiff,  but  also  |)osi- 
tively  by  transferring  the  riglit  of  possession  to  him  who 
hath  maintained  the   possession.     1  liiirr.    Rep.    119. — 

Sunn.    112,  14.  13,  105 Salk.  421,  685— L.  Ray.  741. 

L.  Eject.  71 — 2  Bl.  Com.  196,  197.— Bull.  102,  103.  In 
the  present  case,  we  have  acquired  this  I'iglit  of  posses- 
sion three  ways — Fii-st,  by  length  of  possession,  namely 
Hays'  possession,  Dewey's  possession,  Long's  ami  Ba- 
ker's i>ossessii)n,  altogether  making  a  much  greater 
length  of  possession  than  the  statute  requires;  which 
when  it  begins  once  to  run,  cannot  be  suspended  or  im- 
jjeded  by  any  ex  post  facto  circumsiance,  till  it  completes 
the  bar  intended  by  the  act.  Secondly,  here  is  a  regu- 
lar chain  of  conveyances  from  the  original  patentee  to 
Blake  Baker,  the  elder,  except  as  to  the  conveyance  from 
Carter  to  Hays  ;  which  if  it  ever  >lid  exist,  and  is  now 
lost,  we  may  prove  Hie  rontenis  nf — and  this  is  dime  by 
the  recital  of  the  Sheriff's  deed  to  M«>ntfort,  under  which 
the  present  Defendant  now  claims.  The  rule  as  to  this 
point  is,  that  though  in  general  a  deed  reciting  another 
deed,  is  no  evidence  of  the  recited  deed  :  yet  if  the  re- 


Haywood's  ukpouts.  57 

citing  ilccd  be  tli;it  hy  wliicli  cillier  PlaiiitiflT  op  Defend- Apr.  ir94. 
ant  claims  title,  it  shall  be  cvitlence,  as  aj^aiust  him  of  ^-''''^''^*^ 
the  reality  "f  tlie  leciled  (iee<l.  Gilb.  L.  Evid,  93.  Thiiil- 
iy,  we  have  a((jiiiri<l  the  jus  possessiouis  by  a  ilesceiit 
cast — Blake  Baker,  the  elder,  was  possessed  at  the  time 
of  his  death,  and  the  land  descended  to  his  heir  at  law, 
the  lessor  of  the  IMaintifT.  Tiiis  cii'cuuistance,  snpiiosina; 
Carter  had  the  tight  of  [lossession  until  that  time  would 

have  tidied   liis  entry,      (-liih.   Ten.  18,  19,  33,  36,  37 

3  Bl.  Com.  170  to  179.— 2  BL  Com.  198.— Co.  Litt.  266. 
Gil.  20.— 3  M.  Com.  ISS.—Lit.  f.  383.— Co.  Litt.  2,'56. 
And  by  whatever  means  Carter'.".  riti;ht  of  possession  be- 
"  came  lolled,  by  the  same  means  the  present  I'laintifF.  np- 
on  whom  the  land  descended,  became  entitled  to  it ;  and 
thcrefoic  in  resi)ect  to  the  litie  ol  tiie  Plaintiff  to  the  pos-  > 
session  of  the  land  in  qnestion,  previous  to  these  pro- 
ceedings by  means  whereof  it  is  pretended  the  Defendant 
liath  obtained  title,  we  may  venture  to  conclude  that  the 
Plaintitriiad  the  ligiit  of  possessi()n  until  and  at  the  time 
of  the  sale  made  by  the  Sheriff  in  the  year  1773,  and  that 
he  iMiw  hath  that  right  of  possession,  and  is  entitled  to 
recover  in  this  ejectment,  uidess  the  Defendant's  title,  as 
proven  in  evidence,  be  valiil  in  law,  and  sullicient  to  su- 
persede the   Plaintiff's. 

As  to  which  we  beg  leave  to  premise,  that  lands  upon     ^  „> 
the  death  of  tin'  ancestor,  immediately  descend  ujion  and     "^     ' 
become  vested  in  tlie  lieir,  except  only  in  the  case  of  a  de- 
vise to   some  other  iierson,  or  of  a  judgment  and  execu- 
tion is.^ui'd  in  tlie  lifetime  of  tlie  ancestor.     Co.  Lit.  184, 

b.  6  Hep.  79,  a.  10  Rep.  50,  b.  51.  Even  in  the  case 
where  lands  are  made  chargeable  by  will  witli  the  pay- 
ment of  debts,  the  descent  to  the  heir  is  not  broken,  but 
they  descend    u|ioii  him  noiwitiistanding.     Co.  Lit.  236, 

c.  265,  6.  Office  Ex.  295.  Godolph.  211,  372,  376,  184, 
199.201.  QMod.  111.  Q  Mod.  Cas.  271.  Cowp.  468. 
1  .^tk.  421.  This  we  mention  merely  to  shew  liow  tlie 
common  law  stood  previous  to  the  act  of  Geo.  II.  which 
will  be  observed  u|ion  by  and  by  more  at  large  ;  and  to 
prove  that  by  the  rules  of  common  law  as  it  was  |)rovi- 
ous  to  that  act,  and  as  we  insist  it  now  is,  these  lands 
had  descended  upon  Blake  Baker,  the  lessor  of  the  Plairi- 

I  tiff,  and  were  to  all  intents  and  purposes  his  property 
previous  to  the  time  of  M'Neil's  judgment  and  execution  ; 
and  then  it  will  follow  of   necessary    consequence,    and 

1     from  the  very  words  of  the  writ  of  execution  by  virtue  of 


58  Haywood's  hepokts, 

Apr.  I794.^vliirli  it  is  pretended  the  SlierifTsold  these  lands,  tliathe 
^"^''^''^^^  had  no  autlmrity  for  scllin.af  ini|iaried  to  him  hy  the  wiit. 
It  recitos  a  reroverj'  of  iiionirs  against  tlic  executors  of 
Blake  Baker,  derfascd,  and  commands  the  Slieiitrto  le- 
vy them  of. the  goods  and  chattels,  lands  and  tenements 
of  Blake  Baker,  deceased,  in  the  iiands  of  his  executors. 
This  cannot  extend  so  far  as  to  iiuthorise  the  Sheriff  to 
sell  lands  t'lat  ne»ei-  were  in  the  hands  of  the  executor, 
and  to  the  possession  wiiereof  the  executor  had  no  jire- 
tensions  ;  and  iti  all  cases  wiiere  the  law  entrusts  any 
man,  and  more  especially  an  officer  concerned  in  th.e  ad- 
ministration of  jn»ifice,  with  a  power  or  authority,  it  re- 
quires that  aiithoriiy  to  he  precisely  and  literally  folluw- 
ed,  mid  no  discretion  is  loft  to  him  of  oxteudin.i^  that  au- 
thority, lest  under  the  colr)ur  of  aclinsj  accoi-din.^  to  the 
spirit  of  his  commission,  he  miqUf  do  some  act  of  injus- 
tice or  oppression.  L.  Nay  713.  Co  /Jf<.  49,  6.  52.  a. 
258.  n.  'iliac.  M.  352.  Co.  Litt.  113,265,6.  Salk. 
563.  2  ,^6.  519.  The  jihiin  inference,  resulting  from 
which  rule  is.  tiiat  tiie  Sln'riflT  having  taken  and  sold 
lands  it)  tiie  hunils  of  the  heir,  uhen  lie  had  not  any  au- 
thority given  to  him  by  the  writ  of  execution  to  sell  his 
lands,  but  only  lands  in  the  Icinds  of  the  executor,  such 
sale  is  exactly  in  the  same  situation.  We  suppose  it  will 
hardly  he  ( ontendcd  such  a  sale  could  be  supported.— 
f.y,\  But  (|uitting  this  oiijection  for  a  moment,  let  us  consider 
*•  '  the  title  of  the  Defendant  in  another  point  of  view.  The 
lands  in  the  present  case,  tlescended  to  the  heir,  have 
been  taken  from  him  and  sold  hy  a  Judgment  (d)tained 
against  the  executors  ;  and  although  it  would  be  sufficient 
to  say,  that  the  law  of  tiiis  or  of  any  other  country  can 
never  be  so  absurd  as  to  establish,  that  upon  a  Judgment 
against  one  man  no  way  interested  in  preventing  that 
judgment,  the  propt-rty  of  another  should  be  taken  to  sa- 
tisfy it,  without  any  opportunity  given  of  defending  him- 
self. Y(  t  as  it  is  to  be  contended  lor  on  the  other  side, 
that  in  this  country  the  lands  of  heirs  are  liable  to  be 
sold  for  the  debts  of  their  ancestors,  upon  a  judgment  ob- 
tained against  the  executors  only  of  tlirir  ancestors — it 
will  become  necessary  to  enquii-e  what  the  common  law 
directed  in  case  of  thedeatli  of  an  indebted  ancestor,  and 
whether  the  common  law  u|ion  this  head  hatii  been  in 
any  respect  altered.  For  if  it  shall  be  found  that  the  coin- 
inon  law  required  notice  to  the  heir,  and  an  opportunity 
to  defend  himself,  before  it  would  [lennit  the  lands  dp- 


uatavood's  reports.  59 

scendcd  to  liinTto  be  charged,  tliis  beinjsj  so  consonant  to  Apr.  179% 
tin*  liictates  of  natural  justire,  must  impose  a  ned'ssity  >«-''^''^*»' 
upon  the  DcCi  ndaiit  of  shewing  smnp  <X|)iess  law,  or  in- 
vincible implication  of  lav\,  sup|)'ir'tc(l  h^  stnuig  reasons 
of  policy,  whereby  it  hath  been  abrogated.  So  strict  was 
the  commiin  law,  that  no  judgment  should  pass  against  a 
man  unheaid — that  no  instance  can  be  imagined  where 
property  was  to  be  afifrctcd  by  legal  proceedings,  that  it 
did  not  require  full  notice  to  be  given  of  the  proceedings 
intended  against  him,  the  design  nf  thtni,  and  a  day  to 
be  appointed  for  him  to  appear  and  make  his  objections 
against  them  ;  and  this  is  re{iuired  even  in  cases  where 
the  person  that  the  Defendant  represented  in  point  of  in- 
terest, had  already  made  a  deed — for  it  was  possible  that 
since  these  proceedings  the  representative  might  have  ob- 
tained a  release,  or  have  some  other  matter  to  sitew, 
which  in  point  of  law  and  reason  would  be  suflicient  for 
liis  discharge:  and  where  a  possibility  of  this  kind  ex- 
isted, thecommcni  law  deemed  it  unjust  to  condemn  with- 
out hearing  the  party.  Thus  in  cases  of  a  judgment  ob- 
tained in  the  lifetime  of  the  ancesttn-,  a  recognizance, 
statute  merchant,  or  statute  staple,  which  in  Kngland 
affect  lands  fi<jm  the  time  of  their  being  rendered  or  ac- 
knowledged, thougli  the  lands  are  liable  thereto  and 
chai'geable  into  whoso  hands  soever  they  may  come,  and 
in  like  manner  in  case  of  a  devise  for  the  payment  of 
debts.  See  1  Williams,  391.  Z  Mod.  Cas.  171.  Cowp. 
AGS.  1  ML  421.  3  Williams  92.  2  Eq.  Cas.  M.  500, 
502.  Yet  in  all  these  and  the  like  cases,  where  it  is  pos-  0^) 
sible  the  heir  may  have  a  sufficient  cause  to  shew  to  pre- 
vent the  execution,  or  whereby  having  notice  he  may  do 
an  act  that  may  prevent  the  execution  or  payment  of 
the  money  due,  or  the  like,  the  common  law  is  strict  in 
requiring  a  sn.  fa.  to  the  end  the  party  may  have  a  day 
given  him  to  make  his  defence,  or  to  do  that  other  act 
which  may  discharge  his  property  fi'om  execution.     He 

here  cited  LUly''s  Ent.  384,  391 Cm.  Car  296,  295 — 

Cro.  Jac.  186.-Cro.  El.  S96.-JS''els.  M.  925.-!2  Keh.  621, 
-pi.  IZ.-Fonb.  GSi.-Dijer  271,  ;)/.  25.-81  pi.  62.-3  Jicp.  15. 
-5  Mod.  88.-G  Mod.  134.-/..  Hay.  854.-4  liac.-Jlb.  418.- 
iialk.  598,  601.  So  careful  is  the  comiumi  law  in  this 
respect,  that  in  the  case  of  ten-e-lcnanis,  who  have  cinne 
into  the  possession  of  lands  chargeal)le  by  judgment,  it 
requires  they  also  must  have  notice  hefoie  the  I'laintift" 
proceeds  to  execution.     /..  My.  590,  1048,  1255,  1036, 


60  Haywood's  keports. 

Apr.  1794.854 Salk.  40,  679,  680,  276 — 6  JM.  199,  226,  256.— 

•^'^^'^^  Lillti's  Enl.  398.-1  J^Iod.  Cas.  113.-2  Cro.  186.— 3  J/od., 
119;  o;4._o  Cro.  506— Cro.  EL  740 — Salk.  601,  598.- 
Cro.  Cur.  215,  228. — Cro.  El.  396.  If  it  i'e(|iiii-os  tliis  in 
favour  of  a  man  wlio  acnuiirs  the  possession  cli:»igc;ible 
with  .1  ju(l.a;ini-iit  already  reiiilei'ed  n^aiiist  liiin.  Iiow 
much  more  will  it  rciiuire  it  in  the  case  of  an  heir  who 
hath  by  descent  lands  not  yet  afTecleil  hy  any  judgment  ? 
This  rule  of  tlic  common  law  extends  to  all  cases  wiiat- 
soever.  Even  where  personal  properly  only  is  to  be  af- 
fected, it  holds  place — if  it  is  meant  to  be  afTectcd  in  the 
hands  of  one,  not  a  jiarty  to  the  first  judj;ment.  and  who 
by  possibility  may  have  a  defence  to  make.  Salk.  320. 
L.  Ray.  245.-2  Doxig.  636.-2  Insl.  471,  395.-3  Bl. 
Com.  344.  And  allliougli  it  be  nuw  (|neslioneii  hy  the 
gentleman  for  tiie  Defendant,  whetlier  tlie  sd.fa.  be  ne- 
cessary since  the  act  of  Georj^e  II,  to  cliargc  lands  in  the 
hands  of  the  Iieir,  yet  this  question  hath  been  iitrtiially 
before  stirred  here,  an<l  delermined  in  the  adirmative — 
for  amongst  (he  recfirds  of  tlie  late  Superior  Court  for 
this  district,  in  the  year  1771,  llieie  is  an  entry  in  these 

words: — "  October  Term,  1771.     Bride  \.  Lathberry 

Execution.  Motion  to  set  aside  the  execution.  The 
Cliiel'-Justice  pronounced  the  opinion  of  the  Court  to  be, 
that  the  execution  be  set  aside,  and  tlmt  restitution  be 
awarded.  The  Chief-Justice  alone  being  on  the  bench, 
and  declaring  tiie  foregoing  to  be  the  opinion  of  himself 
and  Justice  Hrnderson,  and  that  the  latter  yesterday, 
out  of  Court,  in  the  presence  and  with  the  consent  of 
Mr.  Justice  Mooke,  requested  the  Chief-Justice  to  de- 
(49)  liver  the  said  judgment,  as  the  judgment  of  the  Court. 
Motion  for  a  sci-Ja.  against  the  tcri'e-tcnant  granted." 
This  entry,  short  as  it  is,  proves  the  decision  of  tliis  ve- 
ry point  heretofore  ;  and  as  it  seems  to  have  been  often 
argued  and  well  considered  by  the  Judgis  at  tiiat  time, 
it  deserves  at  least  some  respect;  and  since  the  revolu- 
tion, there  have  been  trials  in  our  Cinirts  in  which  the 
o]iinions  of  the  Judge  liase  been  conformable  to  this  opi- 
nion in  the  case  of  Lathberry — 1  mean  the  decided  opi- 
nion Judge  W11.1.IAMS  gave  in  the  case  ol  Baker  and 
Long,  iis  to  one  parcel  of  the  land  sold  upon  a  judgment 
against  the  executois,  and  in  the  case  of  Baker  and  Ashe 
triid  in  this  Court.  Now,  if  in  the  case  of  an  executor 
or  administrator,  where  judgment  hath  been  regularly 
obtained  against  his  testator  or  intestate,  the  law -re* 


Haywood's  reports.  6t 

Huires  notice  to  issiir  to  liim  before  it  will  peimit  liini  to  Apr- 1794. 

Jje  rliarged,  because  there  is  a  iiossibility  of  liis  liiiviii!;  '>^"^''^*»' 
something   to   allege  in  his  defence,  surely  suvli  a  caution 
is  much  more  necessary  where   lands  are  to  lie   atlci  led 
in  the  hands  of  the  heir,   upon  a  judgment  obtained  a- 
gainst  an  executor,  in  the  case  wbire  the  scL  fa.  is  to  is- 
sue against  the  executor  or  administrator — hi.s  testator, 
or  intestate  was  at  the  time  of  the  jndgnuMit  (lie  princi- 
pal, and  indeed  the  onl}'  person    who    was    inteiesttd  in 
defeating  and  preventing  the  entering  up  of  such  judg- 
ment—liis  pi'operty  was   to   be  subject  to  it — his  person 
was  liable  to  it — he  best  kin^w  every  defence  tliat  cuuld 
be  made,  havitig  been  personally  concerned  in  (M'igioating 
the  contract  or  cause  of  action  upon  wiiicii  tiie  jiaigment 
was  obtained  ;  yet  because   the   executor   may    liave  by 
jiossihility  obtained  a  I'elease,  or  may  not  have  sufficient 
property  of  tiie  deceased,  and  so  may  be  in  danger  to  he 
subjected  for  want  of  projier  pleading  de  bonis  prnpriis, 
he  must  have  notice.     In  the  case  of  tiie  executor  and 
heir,  it  is  most  generally    the  interest  of  the  i-xtcuti)r  to 
throw  the  burthen  of  the  debts  upon  the  laid  of  the  heir. 
He  is  m>ist  generally  a  [lerson  beneficially  concerned   in 
■point  of  interest  in  the  iiersonal  estate,    which  if  In-  can 
save  at  the  expense  of  tlie  real  propert},  he  and  tlie  other 
legatees  become  so  much  gainers  ;  and  tlie  case  now  be- 
fore the  Court  exhibits  an  examjdc  of  the  grent  facility 
with  which  an  executor  might   ruin  the  heir,  if  the  heir 
was  not  to  be  made  a  paiiy  before  his  land  ct)uld  be  sold, 
if  tiiP  executor  was  so   minded.     In  this  case,  the  execu- 
tor pleaded  plene  ailminislravit  ami  non  assumpsit,  but 
only  the  latter  issue  was  siihniitted   to  the  jur),  the  for- 
mer being  confessed  by  the  i'laintiff  McNeil.     If  such  a 
confession  be   siifiicient  evicL-nce  of  the  personal  assets     f50) 
being   exhausted,   so  as  to  enable   the   creditor    without 
more  ceremony  to  lay  luild  of  the  land,   every  executor 
by  procuring  a  confession  of  the   jilea  of  plene  adminis- 

;  travit,  by  the  creditor,  whose  inierest  it  would  most  ge- 
nerally be,  for  tiie  sake  of  liaving  a  speedy  recovery,  to 
accommodate  the  cxecutoi-  \vith  such  a  confession,  would 
.  have  it  in  his  jiower  to  charge  the  I'cal  property  with  all 
the  debts  of  the  testator;  and  thus  tlie  Inir  be  stripped 
of  his  freehold,  though  there  miglit  he  in  possession  of  the 
executor  personal  propeity  to  a  inuili  greater  ainoiiiit 
than  would  satisfy  all  the  debts  ;  it  might,  for  ought  wc 
know,  have  been  the  case  in  the  inescnt  instance.    Why 


62  uaywood's  kepouts. 

Apr.  ire*.  J i,)  „Qf  ^im  creditor  and  executor  submit  to  tlic  jiiry  to 
^'^'^''^^^  enquire  of  tlie  plea  tA'  jilcne  adminislravit,  as  well  hs  that 
of  nan  assumpsit?  It  is  evident  tlit-re  was  some  utider> 
standing  between  tbem  ;  but  all  we  contend  foi-  is,  that 
such  a  consbination  is  possible,  and  that  ilie  cfTrcIs  rni,a;ht 
be  veiy  prejudicial,  if  not  ruinous,  to  the  brir;  and  that 
a  rule  from  whicf^  so  many  evils  flow,  and  so  murli  in- 
justice  s[)riiiss,  cannot  be  fouiuled  in  law.  It  places  Iho 
lands  of  the  heir  completely  in  the  poAer  of  the  execu- 
tor, whose  ititerest  it  is  to  biirtiien  the  land  in  exonera- 
tion of  the  personal  estate.  It  is  commiltere  agnum  hipo, 
and  to  deprive  the  heir  of  iiis  freeliold  untried  and  un- 
heard, when  perhaps  he  is  able  to  shew,  if  he  had  an  op- 
portunity, that  the  [lersonal  assets  were  not  exhausted, 
or  collusion  between  the  creditor  and  exrctilur  in  de- 
manding and  allowing,  or  in  respect  of  the  (juantuin 
thereof.  'I'iie  executor  may  frequently  be  exjiosed  to  the 
temptation  of  siilTcrins  juds^ments  that  might  be  |)rc- 
vented  by  a  proper  defence.  There  are  circumstances 
which  would  render  such  a  conduct  profitable,  not  only 
to  the  creditor,  but  to  himself.  Shall  not  the  heir  be  al- 
lowed to  defend  himself  against  such  attempts  ?  Shall  his 
freehold,  so  much  respected  by  the  law,  be  taken  from 
him  at  the  will  and  pleasure  of  the  executor,  or  by  his 
neglect  and  cai'elessncss  ?  Sui-cly  no  person  can  be  more 
jm|iroperly  trusted  with  the  Inir's  interest  than  the  exe- 
cutor, who  in  so  many  instances  has  an  interest  so  di- 
rectly o[)p()Scd  to  that  of  the  heir.  But  without  reason- 
ing about  the  policy  or  jn-opriety  of  the  thing,  as  it  is 
certain  that  the  common  law  i-equired  notice  to  the  heir, 
let  us  now  demand  by  what  statute,  act  or  other  law, 
this  jnivilege,  so  essential  to  justice,  has  been  taken 
from  him.  There  is  no  express  law  for  this  purpose — 
but  it  will  be  urged,  that  this  alteration  is  operated  by 
/•gj-v  implication  and  construction  of  the  act  of  5  Geo.  II.  ch. 
7,  which  enacts,  "That  from  and  after  the  29th  day  of 
September,  in  the  year  1732,  the  houses,  lands,  negioes 
anil  other  hereditaments  and  real  estates,  situate  or  be- 
ing in  any  of  the  said  plantaticnis,  belonging  to  any  per- 
son indebted,  shall  be  liable  to,  and  chargeable  with  all 
Just  debts,  duties  and  demands  of  what  nature  or  kind 
soever,  owing  by  any  such  jierson  to  bis  Majesty,  or  any 
of  his  subjects,  and  shall  and  may  be  assets  for  the  sa- 
tisfaction thereof,  in  like  tnaniirr  as  real  estates  arc  bj' 
tlie  law  of  England  liable  to  the  satislactioii  of  debts  due 


HAYWOOn's    REPORTS.  68 

by  bond  or  otiior  sppiialty  ;  and  sli-all  be.  subject  to  the  Apr.  1794. 
like  i-einodips,  proceed mp;s  and  process  in  au)  Cotii-t  of  >^~^''^*^ 
Law  or  Equity,  in  any  of  tiie  said  [tlantations  respect- 
ively, foi'  seizing,  extending,  selling  or  disposing  of  any 
surli  houses,  lands,  negroes  and  other  liei-editameiits  and 
real  estate,  towards  the  satisfaction  nf  siicli  debts,  duties 
and  demands,  and  in  like  manner  as  jxrsonal  estates  in 
anj  of  liie  said  plantations  rtspectixelv  are  seiz<'d,  ex- 
tended, sold  or  disposed  of,  for  the  satisfaction  of  debts." 

If  the  alteration  contended  for  in  icspect  of  notice  to 
the  heir,  is  not  to  tic  inferred  IVotn  this  act,  it  lias  never 
been  affe(  ted  at  all,  and  the  cominon  law  remains  as  it 
was — then  for  want  of  notice  (o  the  lessor  of  the  Plain- 
tiflTin  the  present  case,  either  by  sci.fa.  original  action, 
or  some  other  process,  the  sale  of  his  lands,  and  tiie  pro- 
cceilings  that  arc  sujiposed  tu  juo'i  it,  arc  wlioliy  void  as 
to  bim. 

In  (nder  to  get  at  the  true  rneaningof  this  act,  and  by 
tliat  means  to  discover  whether  it  lias  really  intended  to 
take  from  the  heir,  tins  privilege  of  being  previously 
called  ujioii  to  defend  himself  before  his  lands  could  be 
seized — it  will  be  proper  to  consider  what  was  the  occa- 
sion of  introducing  the  act,  and  what  the  mischiefs  it 
meant  to  remedy  ;  for  if  there  were  miscliicfs,  and  it  re- 
medies them  without  the  aid  of  the  coiistrtictiun  that  the 
other  side  will  contend  for,  we  apjirehend  tlierc  can  be 
no  reason  for  extending  it  further  than  will  reach  these 
mischiefs,  and  more  especially  as  such  a  cosistructiuii  i.s 
against  the  princi[des  of  natural  justice,  and  against  that 
j'ule  of  reason  and  the  common  law,  which  at  ail  former 
periods  bath  most  carefully  been  adhered  to  as  tiie  onlyr 
sure  means  of  obtaining  justice.  In  the  times  when  the 
feinlal  system  prevailed,  lands  could  not  be  sold,  lest  an 
improper  tenant  should  be  substituted  ;  and  where  a  debt 
was  recovered,  there  lay  no  other  process  for  the  credi- 
tor but  Afi.fa.  or  lev.  fa.  3  Rep.  IS.  Thus  the  law  con-  /go- 
tiiiued  until  the  13th  Edward  !.  when  the  Parliament, 
finding  how  beneficial  it  was  to  that  country  to  extend 
credit,  by  making  creditors  as  secure  as  possible  of  their 
debts,  passsd  two  acts,  making  lands  liable  for  the  satis- 
faction of  <lebts — llie  one  in  the  ISth  Edw.  I.  ch.  18,  gi^- 
ing  the  writ  of  elegit;  the  other  in  the  same  year,  ch.  11, 
giving  the  statute  merchant,  &.c.  2  7»s?.  395.  By  tiie 
tlegit  the  creditor  might  take  the  one  half  of  the  lands 


64  IIAYWOOU'S    REPORTS. 

Apr  1794.  wlicip  (lioi'c  was  no  personal  estate,  to  hold,  nntil  out  of 
"-''^'~^*^  till'  profiis  (»f  an  a|i|)raise(]  yeai'I^  value,  his  di'bt  should 
be  .sviti-,rieil.  In  the  case  of  l!ie  statute  merchant,  the 
whole  liiiid  was  to  he  holden  till  such  time,  as  accoi'diiig 
to  ail  appraised  yearly  value,  the  deht  should  be  ma>Ie. 
A  sale  in  either  case  was  not  allowed.  And  in  respect 
to  the  deht  of  an  ancestor,  if  he  dii'd  hi-fore  any  judginent 
recovered  a,s;aiiist  liiin,  the  heir  was  only  lialde  to  such 
debts  as  were  due  by  the  oblii^atiou  of  the  ancestor,  and 
in  whicli  the  heir  was  expressly  bound  :  as  to  all  spe- 
cially debts  in  which  he  \Nas  not  named,  and  all  debts 
dui'  liy  simple  contract,  where  no  judgment  hail  bi-en  ob- 
tained a,qaiiist  the  ancestor  in  liis  lifetime,  tlie  heir  was 

not  cliars^eable  «ith  them.     2  Bl.  Cum.  377.  378.  244 

1  P.  mi.  777.-2  A^els.  66,  924.— Fern.  180.— 3  Levintz. 
189. — Plow.  440.  Thus  stood  tlie  law  at  the  time  of  the 
first  selilemeiii  of  fliis  country.  The  inapplicability  of 
it  here,  and  its  unfitness  for  the  circumstances  of  this 
country,  soon  became  evident.  The  ijreater  part  of  the 
property  of  this  country  consisted,  thuu(;-h  in  fertile,  yet 
in  uncleared  lands,  not  of  very  !!;reat  value,  ami  yielding 
no  annual  profit.  As  the  acquisition  of  a  tract  of  laud 
was  within  tiie  compass  of  every  iiiaii's  atchievement, 
every  man  chose  to  employ  his  labour  in  the  cleariiiij;  and 
culti^atinii;  his  own  land  rattier  than  anotlier's,  whicli 
when  cleared  and  improved,  and  rendered  fit  for  tilla.t^e, 
would  advance  only  the  interest  of  the  own  ■!■,  and  tend 
very  little  to  his  own  :  hence  ri'siilied  the  iiucomjietency 
and  inutility  of  the  writ  of  elet^it.  K'cperiencc  .soon 
i  evinced  that  few  or  none  would  ctiiseut  to  hold  lands  by 
.such  a  tenure  as  was  offeivd  by  tlie  writ;  hence  real 
jiropeity  gave  no  credit  to  its  owner — it  could  not  in 
practice  he  made  answerable  f  o"  his  debts.  Tliis  was 
oin-  of  the  inconveniences  the  act  meant  to  remedy, , and 
to  that  end  it  has  made  lands  liable  to  be  seized,  extend- 
ed, sold  or  disposed  of,  in  like  manner  as  personal  es- 
tates, in  any  of  the  said  plantations  respectively,  are 
seized,  exti'iidrd,  sold  or  disposed  of,  for  the  satisfaction 
of  di'bts.  By  this  branch  of  the  act.  Ian<ls  wliich  lieforc 
(53)  were  not  in  riality  liable  to  the  satisfaction  of  debts,  may  > 
now  be  exp'ised  to  sale,  and  'iiis  iiicoiivenieiici'  is  com-  , 
pletf'ly  redressed.  Anotiier  of  the  ioccnivenieoces  result- 
ing from  the  law  as  it  stood  before  tiie  passing  of  that  « 


uaywood's  reports.  66 

act,  was,  that  IkikIs  in  the  hands  of  thp  heir,  were  not  AP""  l^Q*. 
liable  to  any  but  spei'ialty  debts,  madeoblii^atory  on  iiim  ^•'"^''"Nm* 
by  express  words  :  this  inronvenlence  is  also  cotn|)letely 
remedied  by  tlic  art — it  ordiuits  for  the  future,  tliat  all 
real  estates  shall  t>e  liable  to,  and  chai-,£;eable  with,  ali 
just  debts,  duties  and  deinantls,  of  what  nature  or  kind 
soever,  owin^  liy  any  snrli  person  to  his  Majesty,  or  any 
of  his  snlijerls.  and  sliall  and  may  l)e  assets  (or  tlie  satist 
faction  thereof,  in  like  manner  as  real  estates  are  Ity  the 
Jaw  of  England  liahlc  to  the  satisfarfion  of  debts  due  by 
bond  01'  other  s|)eciaity — tliis  is  a  most  copious  provision 
against  the  latter  misriiief.  By  this  branch,  lands  in  the 
hands  of  an  i)eii'.  arc  subjected  to  sale  for  all  kinds  of 
debt-i.  These  two  branches  of  the  act  are  ail  the  opera- 
tive parts  of  it,  and  are  manifestly  aimed  af^ainst  the  two 
evils  before  mentioned  :  it  contemplated  the  remo>al  of 
these  and  of  these  only.  B'-fore  the  passinj;  of  this  act 
lands  could  not  be  sold  for  the  payment  of  debts,  and  tlio 
heir  was  not  liable  to  the  simple  contr^act,  or  other  debts 
of  the  ancestor  in  whir!)  hr  was  not  named  :  since  the 
jiassing  of  tiiis  act  they  are  lialile  to  be  sold,  and  in  tlie 
hands  of  the  heir  are  lialile  to  all  debts  justly  owinp;  from 
the  ancestor.  By  tlie  removal  of  these  inconveniences 
the  purposes  of  the  act  are  fully  effected,  and  we  contend 
there  is  no  projiiieiy  in  extending  it  to  any  other  case, 
which  probably  tin'  Liegislatnre  had  not  in  view,  as  that 
would  be  to  make,  not  to  construe,  the  act.  It  will  bo 
nrged,  that  b)  the  words,  '•  Shall  be  subject  to  the  like 
remedies  and  procevdings,  in  any  Co^irt  of  law  or  equi- 
ty, in  any  of  the  said  plantations  respec  lively,  for  seiz- 
ing, extending,  selling  or  disposing  of  any  such  houses^ 
lands,  negroes,  or  other  hereditaments  and  real  estate, 
towards  the  satisfaction  of  such  debts,  duties  and  de- 
mands, and  in  like  manner  as  personal  estates  in  any  ol' 
the  said  plantatiiuis  res|(ectively,  are  extended,  sohl  or 
disposed  of,  for  the  satisfaction  of  deb's,"  the  Parliament 
intended,  as  to  all  purposis  of  execution  of  judgments,  to 
have  lands  considered  as  personal  property  ;  and  of 
course  that  it  is  immaterial  whether  the  executor  had 
personal  assets  sufficient  or  not,  as  the  creditor  had  his 
0|itioii  to  take  the  real  or  personal  first,  at  his  pleasure  ; 
and  that  the  real  estate,  as  to  tiiis  purpose  being  to  be 
considered  as  personal  estat<',  is  properly  in  the  hands  of  (54^; 
the  executor,  although  as  to  all  persons  hut  creditors,  it 
is  ts  be  considered  as  real  estate  descending  to  tb«  hefr 
9 


66  Haywood's  reports. 

Apr.  1?94.  jjg  |,p}'o,.g  (hp  passinc;  of  the   act,  and  consequently  tliat 
^-^"^^^"^^  there  was  no  necessity  for  any  other  person  th  in  the  ex- 
ecutor to  be  made  a   party    to   the  Jiidafraent   by   force 
whereof  the  lands  were  soUI.     This  is  the  doctrine  that 
will  he  attempted  to  he  establishcl  for  the    Defendant — 
but  by  the  Ijiw  of  England,  np  to  the  time  of  passinj;  the 
act  of  Gen.  II.  »m]  of  course  by  the  law  of  this  country 
np  to  the  R;ime  time,   the  porsonal   estate   iiath   always 
been  considered  as  the  proper  fund    for   the   payment  of 
debts,  even  in  cases  where  lands  or  real  estate  have  been 
made  chatgeable  by  will  or  judgment  to  the  payment  of 
debts.     Yet  so  great  hath  been  tlie  regard  which  the  law 
had  for  fieehold  property,  that  it  would  never  suffer  it  to 
be  touched  hot  where  it  became  manifest  the  personal  es- 
tate was  exhausted.     Z  Inst.  595.    4  Bac.M.  419.   Can- 
ning, verb    assets.     2  E.  C.  M.   493.  s.  5.     494,  s.  8. 
496.  s    13.      500,  s.  30.  31.     502,  s.  38,  89.     2  C/».  Cas. 
84.     1  Vern.  36.     2  Vent.  349.     1  E.  C.  M.  270,  s.  10. 
This  rule  is  not  any  rclick  of  tlic  ancient  feudal  system. 
It  is  founded  in   tlie  soundest   |)olicy,  equally  apjdicahle 
to  the  condition  of  tliis  country  as  to  that   of  En.i^land, 
and  accordingly  has  been  cherislied  and  supported  here, 
both   before  and  sinre  we  emerged  from  regal  govern- 
ment.    That  |)ro|)erly  which  is  deemed  tlie  most  sacred, 
ar^d  is  tjie  best  secured  by  law,  becomes  more  than  any 
other  the  object  of  attention,  because  it  is  the  most  per- 
manent, and  it  is  good  policy  to  make  that  property  most 
the  object  of  attention,  whicii  the  most  effectually  attach- 
es its  proprietor  to  the  country  he  lives  in,  and  real  pro- 
perty possesses  this  quality  mure   than  any  otiier.     An 
industrious  man,  who  liy  his  labour  has  collected  where- 
withal to  purchase  liim  a  little  property,  uiiturally  fixes 
his  attention  upon  that  which  in  all  probability  will  con- 
tinue the  longest  «ith  his  posterity,   and  which  the  law 
has  rendered  the  most  difiicult  to  be  taken  from  him — a 
freehold  b'-comes  his  object,  as  well  for  the  reasons    be- 
fore mentioned,  as  because  (he  Constitution  of  the  coun- 
try Iras  annexed  to  it  certain  privileges  that  advance  him 
in  the  rank  of  citizenship  ;  and  as  the  freehold,  when  ac- 
quired, is  incapable  of  being  moved  away  like  personal 
pr<(perty  when  danger  tlireatens  or  the  State   has   occa- 
sion to  call  f.ir  per>'onal  or  pecuniary  aid,  he  is  always 
ready  to  be  called  on,  and  to  snjqily  the  emergencies  of  I 
the  commonwealth  ;  when  at  the  same  lime  the  holder  ufj 
(55)    personal  property,  apprised  of  the  services  whicli  the 


UAYWeOD'S    REPORTS.  bi 

atate  needs,  hath  withdrawn  both  himself  and  his  offcrts  Apr.  1794. 
from  the  country,  and  pn^sibly  may  throw  them  into  ilie  ^-"'^''^ 
scale  of  the  enemy.  The  more  freeholders  there  are, 
therefore,  the  greater  is  tlic  |iiililic  strencjth  and  res|»ect- 
ability — anil  the  method  the  law  has  taken  to  encrease 
their  ninnher,  is  by  (daring  freehold  property  as  fir  out 
of  the  reach  of  creditors  as  was  consistent  with  that 
#  other  maxim  of  justice  and  good  policy,  that  all  just 
debts  ought  to  be  paid  wlien  the  debtoi'  has  any  pro()erty 
wherewith  to  pay  them.  Tlifse  we  think  are  sufficient 
reasons  for  the  jiroference  ihe  law  has  given  real  over 
persniiril  property  ;  and  notwithstanding  tiie  construction 
conteniled  for,  I  believe  it  has  always  heeu  understood 
since  the  passing  of  this  act,  that  the  rule  of  law  is 
so.  In  the  case  now  before  us,  and  in  se\erul  other  ca- 
ses that  have  been  before  this  Court,  in  which  the  present 
Plaintiflf  was  conceined,  there  was  the  plea  of  plene  ad- 
ministravit  pleaded  and  confessed  ;  from  whence  it  may 
be  inferred  to  iiave  been  tM(^  opinimi  of  tiiese  times  that 
without  such  plea  the  lands  couM  not  be  made  liable, 
and  in  the  same  cases  it  is  observable  there  is  a  sugges- 
tion entered  on  the  record,  that  there  are  lands,  intima- 
ting that  the  plea  of  plciie  aduduistravit,  confessed  or 
found,  was  tlie  only  circumstance  tliat  could  warrant 
such  suggestion  ^  and  that  in  theKc  times  the  lands  were 
not  considered  as  assets  in  the  hands  of  ixecutors  for  the 
payment  of  debts;  for  had  they  been  assets  in  the  hands 
of  the  executor,  the  suggestion  of  lands,  where  it  was 
confessed  that  the  executor  had  legally  disjiosed  of  all 
Ills  assets,  would  have  bci'U  absurd  :  and  since  the  Revo- 
lution, this  same  rule  of  law  has  been  carefully  attended 
to  and  preserved.  JV.  C.  Laws,  303,  s.  29.  530.  531. 
These  instances  serve  to  evince  the  constant  opinion 
which  has  been  entertaJTied  of  the  existence  and  the  pro- 
priety of  the  rule,  that  real  pr()perty  cannot  be  affected 
where  there  is  personal  estate  to  answer  the  dpm.iud, 
both  before  and  since  the  passing  of  the  act  of  Geo  IT. 
and  constant  opinion  and  experience,  we  arc  told,  a-'c. 
good  interpreleis  of  an  act  of  Parliament ;  and  to  all 
those  instances  I  woidd  add  tlie  weight  of  the  solemn  ad- 
judication in   1771,  before  stated. 

These  examples  all  prove  that  the  construction  the  De- 
fendant would  put  upon  this  jiarr  of  tlie  act  of  Geo.  IL 
blending  real  with  personal  property,  and  placing  n  in 
the  same  degree  of  liability  with  personal  property  f«f 


68  HAYWOOn's    REPORTS. 

Apr.  i?94  4),e  satisfwrtion  of  debts,  niilitiitcs  b"tli  with  (he  policy 
^■^y^^^  of  our  laws  in  general,  and  witli  tlie  true  s|iiiit  of  the  act 
in  question  in  particular,  and  provcH  also  t1i:it  uo  .should 
(65)  look  out  for  some  other  mcatiii^e;  more  consonant  to  both  ; 
and  the  true  mcanina;  srem'4  to  he,  tliat  the  real  e»tate, 
like  the  pei'tonaK  shall  he  liiiblo  to  be  sold  by  the  writ 
of  Ji.  fa.  and  to  be  conveyed  to  the  vendee  f<ire»er  a*;  per- 
sonal jtiopri'ty  may,  it  respec.'s  only  the  interest  which 
may  be  conveyed  lo  liie  purchaser,  and  in  that  respect 
only  places  real  estate  eipon  the  same  fnotine:  as  pei-son- 
al.  Bef'Mo  (he  passing  of  the  act  of  Geo.  If.  tenant  by 
degit  rould  only  hold  the  land  until  by  the  reception  (»f 
the  yearlj  profit.^  he  had  made  the  debt,  now  the  vendee 
shall  be  Entitled  to  hold  them  forever,  in  like  manner  as 
if  he  had  purchased  personal  property,  and  in  like  man- 
ner as  if  pei'sonal  propert\,  instead  i>f  real,  had  been 
seized,  extended,  sold  or  disposed  of,  for  the  satisfaction 
of  the  debt,  and  he  had  be(  (ime  (he  purchaser.  Surely 
it  cannot  be  inferred  from  iluse  words,  that  the  ancient 
well  established  rule  of  preferiing  the  real  to  personal 
property,  is  broken  down,  and  together  witii  it  this  other 
rule,  that  every  man  ought  to  have  the  defence  of  liis 
own  property,  and  warning  given  him  to  defend,  before 
it  shall  be  taken  from  him.  when  they  are  so  capable  of 
another  meanitig,  and  such  an  one  too  without  which  the 
law  would  not  l)e  perfect,  nor  could  be  made  to  accom- 
plish its  end.  is  it  not  enough  that  lands  are  made  lia- 
ble to  sale,  vviien  before  they  could  only  be  extended  ?— ^ 
Must  we  go  furtlier,  and  imply  what  the  law  lias  not 
said,  that  they  may  be  taken  from  the  heir  and  sold  with- 
out making  liim  a  party  ?  For  this  is  the  direct  conse- 
jquence  of  sayitig  they  shall  be  assets  for  the  |iayment  of 
debts  in  the  hands  of  the  executor.  Wliy  say  the  execu- 
tor shall  Lave  it  in  his  power  to  aff  ct  the  real  estate  by 
confession  of  judgment,  or  not  defending  the  claim,  or 
defending  it  but  faintly,  or  by  colluding  with  the  credi- 
tor, when  this  law  has  not  said  it?  Why  say  the  credi- 
tor may  make  the  land  first  liable  if  lie  will,  when  this 
act  expresses  no  such  sanction  ;  and  when  the  ancient 
rule,  framed  with  wisdoio  and  grounded  upon  the  sound- 
est reasons,  has  manifestly  and  undeniably  drawn  a  jdain 
line  of  distinction  between  the  real  and  personal  estate 
of  the  debtor,  making  the  former  an  auxiliary  fund,  only 
11  ben  the  other  fails  ?  Why  break  down  so  many  mate- 
rial kuuu<iarte»;   when  the  act  lias  said  nothing  aboift 


JJAYWOOD'S    TlEPOnTS.  W 

tliem,  and  when  it  is  fully  satisBcd  by  tlie  tneanir)]s;  wpApr.  1794* 
«ontin(l  for,  and  when  the  aft  has  cloarly  exiiiL.s-^td  its  ^•^"^''^^ 
mcnniiig  with  respect  to  the  leal  estate,  to  be  that  it  shall 
be  liable  to  simple  contrart  and  otiier  debts,  in  like  man- 
lier as  ival  estates  are  by  the  law  of  Ensclaiid  liible  to  (57) 
the  satisfaction  of  debts  due  by  bond  or  othei-  s|M'cially  ? 
How  fire  they  liable  to  be  affected  in  Ens^iand  by  bond 
or  specialty  debt  ?  Are  they  liable  to  he  extended  in  the 
hands  of  the  heir  by  ajndgnieiit  against  the  heir,  before 
they  can  be  seized  ?  In  cane  of  a  judgnient  against  the 
ancestor,  must  there  not  he  a  sci.fa.  against  the  heir  ;  if 
no  judgment,  must  there  not  be  an  action  of  debt  against 
the  heir  ?  Can  lands  in  England  be  affected,  wliilst  liiere 
is  personal  estate  suiE(  lent  to  pay  tiie  debt  ?  Could  this 
art  have  more  definitively  ex|)rpssed  its  meaning,  than 
by  referring  to  this  well  knou?i  criterion,  in  like  raannei 
as  real  estates  in  England  are  liable  to  tlie  satisfaction 
of  debts  by  bond  or  otiier  specialty  ?  "  How  can  it  be  pre- 
tended after  this  precise  declaration  of  their  meaning, 
tiiat  the  Parliament  intended  tlie  lands  of  this  country  to 
be  considered  not  as  real  estates,  but  as  personal  assets 
for  the  satisfaction  of  debts  i  Can  such  a  meaning  be 
imposed  against  the  very  words  of  tlie  act,  and  in  the 
face  of  80  many  ancient  rules  of  law  ?  Surely  I 
shall  be  warranted  in  concluding  it  cannot.  But  let  it 
be  granted  the  Parliament  really  meant  that  lands  should 
be  considei-ed  as  personal  estate  in  the  hands  of  the  ex- 
ecutor; what  will  that  avail  the  Difendants  in  the  pre- 
sent case  ?  Tlie  consequence  will  be,  that  these  lands, 
as  to  the  purpose  of  making  satisfaction  for  debts,  went 
as  other  personal  property  into  the  iiands  of  the  execu- 
tor, from  and  immediately  upon  the  death  of  the  testator, 
and  were  assets  as  the  personal  estate  ofthe  testator  was 
in  his  hands  from  that  time ;  then  tiiey  were  assets  in 
.the  hands  ofthe  executoi-,  when  the  Plaintiff  .WJVeii  con- 
fei^sed  the  plea  of  plene  administuivit,  and  the  confession 
of  that  plea  amounted  to  this,  that  the  executor  had  paid 
in  a  legal  course  of  administration,  to  the  value  of  the 
assets  which  had  come  to  his  hands,  and  this  being  a  con- 
fession on  record,  barred  him  from  ever  resorting  to  any 
ofthe  testator's  property,  whicii  at  the  time  of  the  con- 
fession of  that  plea,  had  come  to  the  executor's  hands ; 
and  thus  the  lands  in  question,  su|iposing  tliein  to  have 
been  perRunal  assets,  were  forever  exonerated  from  the 
Plaintilf's  demaitii.     8  Jtej).  134.     OJfi.  Esse.  185,  IBS. 


TO  uaywood's  reports. 

Apr.1794. 190,  191.  Bull.  169.  So  fliat,  if  it  be  cnnceilcd  to  the 
''^'"^'"**^  Drfentliuit,  that  Hinse  lan<ls  were,  what  in  triitli  tliey 
Were  iii)%  personal  estate  ;  yet  they  were  evidently  ille- 
gally sold.  Let  us  add  (uie  observation  here,  and  wc 
will  qnit  this  part  of  the  rase — had  the  act  of  Geo.  11, 
made  lands  as  [lersonal  estate  for  tin?  payiiient  of  debts, 
then  tlie  exerntor  would  have  had  some  coiitroul  over 
(58)  *'''^"''  '"'■  ""'  |)'irpose  of  keepini^  them  liable  ;  he  would 
have  had  some  power  to  dispose  of  them,  when  it  became 
ev idcnt  the  peison;il  estate  was  deficient — but  has  it  ever 
been  known,  that  the  execntor  has  taken  possession  of 
the  lands  npnn  the  death  of  the  testator;  or  that  he  has 
had  it  in  his  priwer  to  hinder  the  heir  from  sellinj;,  when 
he  wished  to  sell  ?  Has  a  sale  of  lands  by  an  executor 
for  payment  of  debts,  without  power  given  him  in  the 
will  of  the  deceased,  ever  been  held,  or  supposed  to  be 
valid  ?  Has  it  not  aiw-ays  been  thought,  since  the  pas- 
sing of  tliis  act,  as  well  as  befire,  that  the  executor  will 
be  liable  to  tiie  action  of  the  heir,  if  he  should  enter  up- 
on the  lands  for  any  other  pui-pose  than  that  of  making 
ail  inventory  ?  And  if  the  executor  cannot  sell  directly, 
to  enable  himself  to  discharge  the  debts  of  the  deceased, 
lest  he  might  jtrejudice  tlie  lieir,  shall  he  he  enabled  indi- 
rectly by  suffering  a  judgment  against  himself,  to  do  the 
sanje  tiling  ?  Would  not  this  he  to  make  the  law  defeat 
its  own  sanctions  ?  To  say  to  the  executor  you  shall 
not  be  entrusted  with  a  power  to  sell  the  iands,  lest  you 
might  injure  the  heii,  but  you  may  sufTcr  a  judgment 
against  you,  and  cause  the  land  to  be  s(dd  that  way. 
Had  the  act  intended  to  consider  land  as  persimal  pro- 
perty, all  those  powers  would  have  flown  to  the  executor 
as  water  from  its  fountain  ;  and  some  of  the  able  Law- 
yers ami  Judges,  who  were  cotemporary  wiili  the  mak- 
ing of  that  act,  and  were  the  best  expounders  of  it,  would 
have  recognized  these  powers,  and  have  caused  them  to 
be  exercised  and  practised — yet  no  instance  can  he  shewn 
of  any  such  prai  ti(  <•,  from  the  time  of  passing  that  act 
to  the  present  iiioincnt;  and  certainly  the  total  silence  of 
those  wlui  have  gone  before  us  on  these  topics,  is  a  great 
e\  i<h  lice  tliat  such  is  not  the  meaning  of  the  act — *licre- 
f«ie,  as  til  tlie  Drfendant's  title,  both  because  the  Sheriff 
liiid  no  auihoriiy  to  sell  the  land  in  question  by  the  terms 
of  bis  precept,  and  because  had  there  been  such  a  pre- 
cept, it  w^s  issued  willnmt  any  judgment  against  the  heir 
to  Manaiit  ii  j  or  tu  make  the  beat  of  it,  by  such  judg- 


UAYWOOU's    REPORTS. 


It 


merit  as  in  respect  of  him  was  totally  void,   we  Itiimlily  Apv.  1794. 
submir.    whetlicr  the  siile  made  by  tlie  Sheriff  is  ■*(  any  >.^~v'*>-' 
validity  whatsoever,  to  do  away  the  title  of  tiie  Plaintiff. 
It  will  be  ui2;ed  for  the  DcfendHnt  in  rase  of  exiiemi- 
ty,  that  these  proceedins^s  at  worst  are   only  erroneous, 
and  will  remain  in  foicc  till  leverseil  by  a  writ  of  ei-ror 
— to  wiiich  we  say,  if  they  are  erroneous  only,    and  not 
absolutely  void,  as  we  contend  ihey  aie,  yet  the  adjudi- 
cation, and  the  award  of  execution,  heina;  the  acts  of  titc 
Superior  Court,  could    not   at  the  time  they  tmdi  place,     /^g-v 
iior  can  they  now,  l)e  rcvei'sed  by  tiie  Superior  Court  in 
a  writ  of  error — (or  the  same  Court  that  hath  rendered 
an  erroneous  judgment,  is  never  entrusted  with  tlie  power 
of  correcting  it.     To  lodge  such  a  power  with,  the  Court 
who  hath  committed  the  error,    with  an  expectation  that 
that  Coui't   would  correct  it,  would  be  absurd  :  and  be- 
side, who  is  to  grant   ti.e  writ  of  error?     There   is  no 
other  Court  in  this  country  but  tiie  Superior  Court  who 
can  giant  it — so  tliat  the  Superior  Court  must  direct  a 
writ  to  itself,    therein  giving  a  comniission  to  itself,   to 
correct  an  error  in  judgment  which  that  Court  had  for- 
merly committed.     This  cannot  be  perionsly  insisted  on: 
it  is  a  doctrine  too  tender  to  bear   tiie   light.     The   true 
rule  is,  where  a  Superior  Court  hath  committed  an  en  or 
in  a  matter  of  fact,  the  same  Court  may  correct  tiie  er- 
ror ;  not  where  tiie  error  is  the  act  of  the  Court  i:i  a 
matter  of  law.     In  England  they  have  a  writ,  or  com- 
mission, diicctfd   to  tliem  from   the  Chancery  for  this 
jnirpose — in  tliis  conntiy  I  do  not   know  liow  tiiey  will 
proceed,  perhaps  by  filing  an  assignment  of  errors,  and 
noticing  the  adverse  party  to  answer  them.     1  Rnll.  746, 
747,  pi.  12.  2  Bac.  Jib.  215,  190.    F.  JV".  B.  50,  51.  LilL 
Ent.  490.     It  is  also  a  rule  of  law,   that   where  a  party 
who  is  injured  by  an  erroneous  judgmi-nt,  is  so  situated 
that  he  cannot  have  relief  by  a  writ  of  error,   or  otiicr 
means  ;  that    then    he   may  be  relieved    by  plea,  entry, 
ejectment,  &c.  or  other  means  best  suited  to  his  case.     2 
Mo.  308.  219.     11  Rep.  44.  b.     2  Bac.  M.  229.     6  Rep. 
14.  fl.    9  Rep.   119.  ft.     5  Bac.  M.   153.     8  Rep.  76.  b. 
Cro.  El.  489.     And  accordingly  there  are  many  cases  to 
be  found  in  the  books,  where  a  man  may  take  advantage 
of  an  erroneous  proceeding  in  assize.     2  Bac.  M.  347. 
Wf.  Ab.   304,  305.     Cro.'jac.  85.  pL  10.     3  Bac.  153. 
Soil.  M.  140.    F.  JV.  B.  648.   Roll.  M.  140,  pi.  6.    And 
if  in  an  assize,  certainly  alio  in  an  ejectment,  both  be- 


72  Haywood's  reports. 

Apr,  1794.  in ^  arfionsoFa  similar  naturo,  that  is  to  say.  both  linini; 
pos'sessoi-y  actions.  1  Burr.  110,  111.  And  inil(>e(i 
there  are  express  authorities  that  such  error  m;iy  he  ta- 
ken aflvantaja;''  of,  upon  eviderice  in  ejectnftent.  2  Bac.  M, 
369.  in  a  note  1  Lev.  l60.  Carth.  453.  So  tl)at  we  ap- 
prehend, notwitlistandina;  this  objection,  for  these  rea- 
sons and  aiithoi'itii's,  it  will  he  thoii!<;ht  we  have  adojited 
the  proper  method  of  avoiding  these  ille!;ai  proceedings 
in  the  present  case,  and  we  hope  to  have  the  opinion  of 
4he  Court  in  our  favour. 

I  cannot  give  any  thins;  like  a  complete  representation 

of  Col.  Daviess  argument,  some  of  the  most  striking  parts 

of  it  I  noted  at  the  time,  and  those  only  I  am  able  to  give 

— though  his  argument  was  a  very   ingpniiuis  one,  and 

C°")     contained  mueh  law,  and  cited  many  authorities. 

Davie,  for  the  Defendant — As  to  the  title  of  tiie  pre- 
sent Plaintiff,  as  attemptiMl  to  be  deiluced  from  tlie  origi- 
nal patentee,  there  is  a  chasm — the  deed  from  Carte)-  to 
Hays  is  wanting.  I  take  the  rule  of  evidence  to  be  this 
— when  a  deed  once  actually  existed,  and  has  bei-n  des- 
troyed by  fire  or  the  like,  (Bull-  254,)  then  a  copy,  and 
for  want  of  a  copy,  parol  evidence  of  the  contents  may 
be  given  ;  but  in  the  present  case  no  one  is  introduced  to 
prove,  he  ever  saw  a  deed  from  Carter  to  Hays ;  no  one 
pretends  to  swear  it  was  lost,  and  consequently  no  |)roof 
is  made  of  its  having  ever  actually  existed.  In  the  case 
of  Few  and  .Slves  at  Hillsborough,  we  produced  the  pro- 
bate of  the  deed  (m  the  minutes  of  the  County  Court; 
even  the  sworn  copy  of  the  Register's  book  is  not  evi- 
dence. As  to  the  recital  of  t!ie  deed  from  Uays  to  Dew- 
ey, that  is  no  evidence  of  the  recited  deed  ;  we  were  no 
parties  to  it :  and  as  to  the  recital  of  the  deed  from  the 
Sheriff  to  Monlfort,  that  deed  is  under  the  seal  of  the 
Stieriff  only,  and  he  who  hath  noi  sealed  a  deed,  cannot 
be  estopped  by  it.  This  deed  contains  only  the  words  of 
one  parly,  neitln  r  is  the  confession  of  Carter,  that  he  had 
conveyed  to  Hays,  of  any  avail.  He  raiglit  have  leased 
for  a  term  of  years,  or  haveconvey<d  some  est.ite  of  less 
dignity  than  a  fee.  He  might  possibly  have  given  it  ver- 
bally, without  executing  any  deed  at  all.  His  saying  he 
had  given  the  land  to  Hays,  is  too  slight  and  too  uncer- 
tain to  be  received  as  proof  of  the  existence  of  a  deed. 
With  respect  to  the  Plaintiff's  title,  by  possession,  the 
second  section  of  the  act  of  limitations  respects  the  Plain- 
tiff's title,  the  third  sectinu  regards  the  title  of  Pel'end- 


ilAYWOOU's    UEPORTS.  73 

ant — by  the  second  scrtion  tlic  PlaintifTimist  Iiave  colour -'^P''' 1794. 
of  title  and  ixissosfeion  ;  but  Hays  never  had  any  coloui"  ^•'>'~'^">^ 
of  title,  and  if  lie  liad  ijo.sscssioii  lor  seven  years  or  uinrc, 
for  want  of  a  ndnur  of  title  to  accompany  it,  he  acquired 
no  title  thereby  :  but  iu  fact  he  liad  no  such  possession 
as  tiie  law  takes  nolice  of,  so  as  to  ripen  into  title  ;  tiiat 
must  be  an  actual  possession,  Qiirtsi  positas  pedis,  an  ac- 
tual settin.!;' down  upon  iheland.  '  It  must  be  sucli  a  pos- 
session as  will  make  a  notoriety  in  ihe  country,  and  in- 
form him  wlio  has  title  that  the  land  is  adversely  claim- 
ed :  othei'wise  a  man  might  lose  his  title  by  a  secret  us- 
ing of  the  land,  which  he  might  not  know  of  till  it  was 
too  late — cutting  timber  off  another's  land,  at  different 
times,  tiiroiigh  a  course  of  seven  years,    will  not  do — it  , 

must  be  an  actual  continued  |»ossession.  Dewey  had  ne-  ^"■'Jf 
ver  any  possession  of  (he  land,  he  lived  ujicni  another 
tract  adjoining  ;  wiiich  other  tract  was  purchased  of  ano* 
ther  person  ;  and  although  flays's  tract,  as  it  is  called, 
might  adjoin  it,  yet  his  possession  of  tlic  other  tract, 
could  make  no  notoriety  of  his  claiming  Haijs's  tract  ad- 
versely to  the  claims  of  all  other  persons.  He  miglit 
have  purchased  it  so  secreitly  from  Ilays,  tiiat  Curler 
might  not  have  known  it  in  seven  years — and  siiall  the 
mere  circumstance  of  bis  continuing  the  pnsscssiim  of 
another  tract  adjoining  tliat,  oust  Carter  (d"  his  title  ? — 
Dewey  conveyed  both  tract-;,  by  one  <leed,  to  Ste^vart,  in 
1765.  Slexvart  had  not  the  actual  possessiim  of  Ilays's 
tract,  but  liad  a  (juarter  upon  that  pai't  of  the  two  tracts 
united,  which  Dewey  before  had  possession  of;  audi 
suppose  the  jiossessi(ni  of  tliis  part,  was  the  iiossessiouof 
the  whole  land  contained  in  tliat  deed,  and  by  conse- 
quence an  actual  [)i'ssession  of  Hays's  tract :  yet  from 
the  time  (d'  Dewey's  conveyance  to  Stewart,  to  the  time 
of  tlie  deatii  o!  J]lake  Baker,  the  eider,  there  is  a  space  of 
about  four  years  oidy,  so  that  lie  had  not  acquired  the 
jus  possessionis  in  his  lifetime. 

With  resjiect  to  the  other  means  by  which  the  Plaiu- 
ttlf  attempts  to  make  a  title  in  himself,  namely,  a  di-scent 
of  the  lands  upon  him  by  the  death  and  st-izen  of  Blake 
Baker,  the  elder,  which  he  insists,  tolls  the  entry  of  hiui 
who  had  the  right  of  entry,  whoever  he  was — this  is  a 
doctrine  founded  in  the  feudal  system,  and  is  therefore 
not  applicable  to  tlie  circumstancesof  this  country.  Gilh. 
an  Ten.  18,  says,  '•  The  notions  of  the  law  do  make  this 
title  to  him,  that  there  may  be  a  person  in  being  to  do  the. 
10 


ii  UAYUUOD'S    KEPOUTS. 

Apr.  1794.  (fuilal  (liitifM,  tofill  tlic  posspssioii,  and  ft)  answer  the  ac- 
^■'^'^^^*-'  tii)ii.s  of  all  per.SDMS  whatsoever  ;  anil  since  it  is  the  law 
that  gives  him  this  light,  anil  obliges  him  to  these  du- 
ties, antecedent  to  any  art  of  his  own,  it  mnst  defend 
such  possession  from  the.  act  of  any  other  person  wliat- 
ever,  till  such  possession  be  evicted  by  judgment ;  which 
being  also  the  art  tif  law,  may  destroy  the  heir's  title." 
Were  this  doctrine  ailojitrd  here,  it  wonld  be  replete 
with  misrhief.  There  is  no  instance  of  any  writ  of  right 
liaving  been  cvei-  sustained  in  this  country,  or  of  any  o- 
ther,  of  lite  ancient  common  law  actions  for  the  rf^rovery 
of  lands  ;  whence  it  may  be  inferred  they  wonld  not  be 
sustained  here,  should  they  be  brought.  But  by  this 
doctrine  if  a  man  liad  privately  settled  upon  another's 
land,  and  before  the.  proprietor  had  discovered  it,  tiic 
trespasser  iiad  died  in  |)ossession  of  the  land,  the  propri' 
etor  could  not  bring  an  ejectment:  wiiich  is  the  only  ac- 
tion here  used,  he  having  lost  the  jits  passessionis  by  the 
descent  cast,  anil  of  course  he  woulil  be  deprived  of  any 
(6Z)  rpf""*f<'y  forever.  Such  a  method  of  acquiring  and  losing 
!\  title,  is  so  unlit  for  the  situation  and  circumstances  of 
this  country,  and  in  practice  would  be  attended  with  so 
many  miscliiefs,  tiiat  I  apprehend  it  cannot  be  taken  to 
be,  or  ever  io  have  been  the  law  here,  whatever  it  may 
have  been  in  England.  It  is  too  rejingnant  to  the  prin- 
ciples of  common  justice.  The  Plaintiff  tlicrcfore  upon 
eiilnr  of  tlie  three  grounds  he  has  taken,  must  fail. — 
£oi  supposing  him  to  have  made  out  a  good  title,  that 
title  liatli  been  legally  transferred  by  a  Siieril1''s  sale  to 
the  Defendant ;  this  leads  me  to  a  consideration  of  the 
act  of  Geo.  II.  At  the  common  law,  lands  were  not  lia- 
ble to  execution  for  debt,  being  obliged  to  answer  the 
feudal  ituties  to  the  Lord,  and  a  new  tenant  could  not  be 
forced  upon  liim  w  itiiout  his  consent  in  the  alienation. — 
2  lia.  Jib.  328.329.  And  the  per.scni  of  a  debtor  could 
not  be  chargi-d  in  execution,  because  he  was  to  be  left  at 
litierty,  to  seru-  the  King  in  his  wars.  3  Itep.  13.  Thi-rc 
were  ;io  other  vxrits  of  execution  for  the  creditor,  but  the 
fi.fa.  and  lev. fa.  by  the  former,  tiie  gonds  and  chatt'ls 
of  the  debtor  only  could  be  taken  in  execution  ;  in  tiie 
latter,  the  Sheriff  was  commanded  quod  deteiris  el  catai- 
lis  ipsius  levari  facias,  &c.  whereby  the  Siieiiff  may  col- 
lect tiie  liebis  out  of  the  profits  of  the  land,  as  the  corn 
or  grass  growing  thereon,  or  ont  of  the  rents  (layablc  to 


Haywood's  kehohts.  75 

Llie  creditor  ;  but  lie  couliJ  not  by  eitlior  of  tliese  writs '^i^'- '''^■^• 
meddle  with  tlic  lands  themselves.  Q  Ba.  Ah.  351.  But  ^''~^^^*-' 
these  writs  were  common  law  s\i-its,  and  atTccted  chat- 
tels only.  Gilh.  on  Exe.  4.  TUefi.fa.  never  was  con- 
siirer<'<l  otliei'wise  than  as  a  writ  a.a;aiii'^t  the  ft-oods  and 
cliatlels  of  ihc  debtor  ;  in  England  the  land  could  nut  he 
sold,  because  the  debtor  or  tenant  liad  not  the  property, 
but  the  lord  of  wlunn  the  lend  was  holden.  It  was  not 
till  the  year  1385,  when  the  vkgit  was  lirst  introdnced 
by  tiie  \oth  Edivd.  1.  ch.  18,  tirat  lands  could  be  affect- 
cil  w  itii  the  tenant's  debts  at  all.  Gilb.  o\i  Exe.  32. — 
But  they  were  not  allowed  to  bo  sold  by  this  writ,  they 
were  to  be  appraised  accordini:;  to  their  yearly  value,  and 
delivered  to  the  creditor  to  hold,  till  uiii  (if  the  yearly 
profits  he  should  make  the  I'eht.  In  Eii;^!aod  the  pro- 
perty of  ail  the  lands  in  tlie  kingdom,  resides  in  some 
sujierior  lord,  and  that  is  one  reason  why  the  land  of  a 
subject  cannot  lie  sold  to  satisfy  his  debts.  But  that  is 
not  the  case  in  tliis  country  :  the  feudal  system  never 
did  prevail  here  ;  every  man  hath  been  always  held  to 
be  the  absolute  lord  and  proprietor  of  his  land,  having  z^;- 
the  entire  dominion  in  himself,  'riieselhinsifs  I  mention- 
od  to  shew  the  gradual  changes  vsliich  lia\c  been  made 
in  the  law  in  respect  ofexecutions,  &  how  it  became  proper 
and  coiivcnient  in  this  country  to  sell  lands  by  tlie  writ  ofj?. 
fa.  when  such  a  proceeding  was  im|iossible  to  beeflected 
in  England.  In  the  year  1732,  and  previous  to  that  time, 
the  evils  existed  that  have  been  eiinmerated  (mi  the  other 
side,  namely,  lands  could  not  le  sold  for  the  payment  of 
debts,  and  tlie  extending  them  here  was  not  any  remedy 
to  the  creditoi-,  owing  to  the  infantine  and  unimproved 
state  of  the  couulry,  and  lands  were  not  liable  after  the 
death  of  an  ancestor,  to  any  o  fhis  simple  contract  debts, 
nor  to  those  due  by  specialty  in  which  the  heir  was  not 
Specially  named:  and  it  is  true,  thatthese  misciiiefs  were 
meant  to  be  remedied  by  the  act  of  Geo.  II.  But  these 
were  not  the  only  evils  it  meant  to  provideagainst,  tiiere 
were  others  which  are  to  be  attended  to  in  fr»rining  a 
Construction  u|)on  this  act,  which  the  counsel  on  the  other 
side  has  not  mentioned,  and  which  noLwitlistandiiig  the 
passing  of  this  a<t,  must  still  remain  unremedied,  if  such 
construction  is  not  put  on  it  as  we  contend  for  by  the, 
law  as  it  stood  at  the  time  of  )passing  the  act  of  Geo.  II. 
If  the  heir  aliened   liofoir  action   brought,   Ihc  debt  due 


76  ■  UAYWOOd's    REPOUTb. 

Apr.  1794.  JVom  the  aticpstoi"  coiiltl  not  he   rccovcrrd    aj^ainst  liim. 

^-^"^'"^^  This  indeed  had  heen  remedied  in  Eii.£;land  liy  the  3  and 
4  W.  and  .M.  eh.  14.     But  tlmt  statute  nut  Ueiiic;  in  rune 
here,  having  been    passed   al'tir    the    settlement  of  this 
country,  the  same  inconvenience  eontiiuied  to  exist   he|e. 
as  had  existed  in  Ent^land  iirevions  to  tlie  act  ol'  If.  and 
Jllf,  and  it  continued  also  after  the  act  of  Gey. //.  unless  the 
words,  *'  and  shall  he  suhjeci  to  the  like  remedies,   pro- 
ceedings and  process,  in  any  court  of  law  or  ei|uity,  in 
any  of  tlic  said  plantations  respectively,  fin-  seizing,  ex- 
tending, selling  or  disposing  of,  any  such  h'luses,  lands, 
iicgi'oes  and  otlici'  hereditainent-i,   and    real  estates,  to- 
■vvai'ds  the  satisfaction  of  such  dclits,  duties  and  demands, 
and  in  like  manner  as  jiersonal  estates  in  any  oftiiesaid 
]dantatiotis.  are  seized,  extended,  sold  or  disposed  of,  for 
the  satisfaction  of  debts,"  shwll    he  so  construed   as   to 
place  real  property  as  to  cxi  culions,  and  the  satisfaction 
of  debts,  upon  the  same  footing  as  personal  estate.     If  in 
tl)ese  respects  it  is  so  considered,  then  tiie  Iieir  will   not 
have  it  in  liis  power  to  defeat  the  creditor  by  alienation  ; 
for  the  land  will  be  as  pei'sonalasscts  in  the  hands  of  the 
executor,  till  the  debts  of  the  ancestor  and   testator  arc. 
(64)     paid,  and  the  sale  of   the  heir   will   be   invalid;  or   the 
lands  will  he  considered  as  assets  in  his  hands  liable  to 
be  affected  by  a  judgment  against  tlic  executor,  and  mak- 
ing the  heir  himself,  liable  to  the  value,  in   like   manner 
as  personal  assets  make  the  holder  of  ihem  liable  for  the 
value,  whether  he  dispose  of  them  before  or  after  action 
brought.     The  Legislature  have  expressly  said,  that    as 
to  the  satisfaction  of  debts,  lands  ^hall  be  liable  in    like 
manner  as  personal  estate,  and  may  like  them  be   sold  ; 
would  not  the  court  then  go  too  far,  should  they  say,  that  j 
in  many  respects,  lands  shall  not  be  liable  as  personal 
estate,  but  shall  be  proceeded  against  in  a  difTerent  way, 
and  that  still  they  shall  be  considered  as  so  much  in  tlio 
nature  of  real  property,  that  the  heir  by  aliening  before 
action  brought,  may  discharge  himself  of  tlie  debt  entire-- 
ly  ?     This  would  be  to  extend  tiie  operation  of  this  act 
to  part  only  of  the  mischiefs  it  meant  to  correct,  by  using 
general  words,  it  undoubtedly  intended  to  cut  ofTall  those 
evils  I  have  mentioned,  by  the  roots  at  once  ;  and  which 
indeed  it  will  have  effected  completely,  should  the  com-, 
prehensi\e  terms  used  by  the  Legislature  be  suffered   to' 
retain  their  genuine  and  natural  import:  and  it  is  tobe>. 


HAYAVOOD'S    REPORTS.  '» 

\ 

remarked  that  by  our  construction,  tlie  process  wlicreby'^f"'"^ 
the  creditor  is  lo  coino  at  his  debt,  is  mucli  siiorfci- ;  the 
whole  is  done  I)}'  makins  the  whole  projierty  of  the   tes- 
tator, a  pledge  as'  it  were  in  tiie  lisiiids   of  the  executor, 
for  tlie  satisiactiou  of  his  just  dehts  :   the  creditor  has  no- 
tliins;  to  do,  hut  to  subsfauliHle  his   cliarge    against   tlie 
executor,  and  to  receive   payment;  this   comports   nitli 
the  preanihle  of  ihe  act,  which  is  made   for   the  purpose 
of  extending  the  credit  of  the  plautalious,  by    putting   it 
in  the  power  of  creditors,  more  easily  to  obtain   I'ecove- 
rics  ami  satisfaction  of  liieir   debts.     It    is   true  indeed, 
the  fd'cgoitig  part  of  this  act  sajs   that  lands  sliall   be 
assets,  for  the  salisfaciioii  of  all  just  debts  in  like  mautier 
as  real  estates  are  by  tl:c  law  of  Eiiglaud  ;  but   this   is 
only  descriptive  csf  the  debts  to  which  lands  sliall  be  lia- 
ble, not  of  the  manner  of  proceeding  against  them  ;  and 
is  tantamount  to  saying,  that  the  lands  of  Carolina  shall 
he  liahh-  to  all  kii<ds  of  debts,  as  much  as  iiie  lands  of 
England  are  liable  to  specialty  debts,  that  is  to  say,  in 
other  words,  as  well  after  the  deatli  of  the   ancestor   as 
in  his  his  lifetime  ;  foi-  in    England    they  are   liable   to 
specialty  debts  in  which  the  heir  is  named,  after  the  an- 
cestoi''s  death  :  or  more  pro|)erl3  speaking,   the  heii-   is 
liable  in  respect  of  lliein.     The  law  of  England    in    the 
case  of  specially  debts,  is  referred  to.  it  being  well  known, 
and  precisely  asceitaiiuil,  how  far   lands  are  liable   by 
that  law  (o  specialty   debts,   when   in    this    former  part      ,     - 
of  tiie  act  by  reference  to  the  law  of  England  it  is  suffi-      ^     J 
cicntly  ascei-tained,  that  the  real  estates  of  tliis  country 
should  he  liable  to  all  just  debts,  and  that  as   well   after 
as    before    the    dt-ath    of  the  ancestor :  then  lest  doubts 
should  be  entertained  by  what  kind  of  piocceding  they 
should  be  alTected,  it  directs  tliat  they  shall  be  procei-ded 
against  in  like  manner  as  personal  estates,  oi-lo  be  more 
explicit,  that  when  judgment  is  against  the  ancestor,  the 
same  process  shall  cause  them  to  be  sold    as   causes   flic 
sale  of  his  personal  property,  tiamely,  the  Ji./a.  and    so 
also  afiei"  his  d'  alh,  that  the  same  |)ro(eed!tigs  as  are  to 
afftctthe  personal  estate,  shall  affect  them  also;  tiiat  is  to 
say,  a  judgment  and  execution  against  the   executors.— 
Besides  the  inconveniences  already   enunieraled    on  the 
other  side,  there  were  also  otiicrs  at  the  time  of  passing 
the  act  of  Geo.  II.  whicii  though  redressed  in  England  by 
the  act  of  3  and  4  IV.  and  M.  had  not  been  remedied  in 
this  country.     If  the  debtor  devised  away  his  land  from 


78 


UAVWOOD'S   HEi'ours. 


Apr.  ir94.  jiip  ii^.j,,^  j|,(.  (ipvlscp  was  not  liable  to  his  debts  ;  in  tlie 
'"^"^'"^^techiMCiil  iintions  of  ibi' law,  lie  arqiiiretl  the  laud  by 
purcliase,  not  by  desreiit,  niid  this  miscliief  i-emained  af- 
ter the  act  ol"  Geo.  II.  Ifmirs  is  not  tiic  proper  construc- 
tion tr»  be  put  upon  the  act,  hut  if,  since  tlie  passing  of 
tiirtt  act  lands  are  to  be  taken  and  proceeded  against  as 
personal  estate,  the  devisee's  power  to  alien  will  he  re- 
strained until  liiediscliarse  of  all  the  testator's  just  debts, 
as  tiic  lands  of  the  deceased,  so  far  as  regards  the  satis- 
faction of  all  just  debts,  will  be  assets  in  the  hands  of 
the  executor,  and  be  bound  by  the  judicment  rendered 
against  him  :  but  as  the  act  of  iff",  and  M.  was  never  in 
foi-ce  here,  all  those  inconveniences  are  left  unremedied 
by  the  act  of  Geo. //.  and  the  creditor,  until  our  act  of 
Assembly,!"  89,  Ber.c.31 1,  stc  2.  mitjht  have  been  defeated 
of  his  debt  by  the  alienation  of  the  iieii-,  or  adeviseoftiie 
lands;  but  all  these  hardships  arc  at  an  einl  by  the  act 
ol  Geo.  II.  should  it  receive  its  proper  construction,  and 
be  held  to  place  the  real  estates  of  ibis  country  upon  the 
same  footing  as  personal  estates  with  regai'd  to  the  pro- 
cess for  debts  due  by  the  owners;  and  then  it  will  be 
found,  that  this  act  destroys  all  distinction  between  real 
and  personal  property,  and  no  longer  allows  the  real 
that  preference  it  possessed  before  tiic  act  of  Geo-  II. — 
A  ])reference  as  I  have  before  shewn,  founded  in  feudal 
princijiles,  and  retained  in  the  code  of  English  laws,  in 
(^56)  the  struggles  between  the  landed  and  commercial  inte- 
rests in  that  countiy,  insisted  upon,  and  maintained  from 
time  to  time,  as  lands  were  gradually  subjected  to  the 
satisfaction  of  debts;  but  in  this  ccnintry,  where  every 
man  was  the  absolute  propiieUir  of  the  land  he  held,  and 
it  was  not  for  the  interest  of  any  party  concerned  in  ibc 
passing  of  that  act  to  insist  n|i«n  that  preference,  it  was 
therefore  no  longer  regarded.  The  act  was  intended  for 
the  benefit  of  creditois,  and  to  give  them  a  hold  on  ihe- 
reala  well  as  the  personal  estate  of  the  dibtor,  without  any 
distinction  between  them  ;  and  it  is  for  this  purpose  that 
the  act  so  expressly  provides,  tiiat  the  real  shall  be  sub-, 
jeit  to  the  like  process  as  the  personal  estate ;  the  act 
desigiii.ti  that  the  creditor  should  arrive  at  bis  satisfac- 
tion out  of  the  real  estate,  in  the  same  manner  and  no 
otbeiwise,  than  if  it  was  personal  property  ;  and  accord- 
ingly alter  the  passing  of  this  act,  the  Judges  r<Mifnrm- 
iiig  to  the  troe  spirit  of  it,  adopted  the  writ  of /i./a,  as 


HAY  wood's    1{EI>0UTS.  79 

ilie  proper  exociition  to  be  issued  tinder  it.  A  writ  cal--^P''-  ^J'^^s 
culiited  only  lor  the  sale  of  personal  rliattils,  and  always  *-''~^'''*^ 
used  at  the  roinmon  lawassuch.  This  is  a  circumstance 
that  proves  tlie  contemporary  exposition  of  this  act  to 
have  been,  that  land  was  considered  as  chattel  pro))erty, 
as  far  as  related  to  the  debts  of  iis  owner.  Upon  what 
other  principle  could  it  be  supposed,  this  chatiel  writ  would 
ever  answer  the  purpose,  it  lands  were  still  to  be  view- 
ed in  tiie  li_a;iit  of  real  pr-operly  ?  Could  a  writ  com- 
manding the  Sheritf,  that  lie  bonis  et  catalUs  debitoris,  he 
should  ujake.  the  debt,  &c.  empower  liini  to  sell  the  lands 
of  the  debtor,  if  by  some  law  these  l.mds  were,  not  to  be 
considered  as  the  bona  etcatalla  dcbiloris.  This  writ  has 
been  constantly  used,  and  no  oilier,  for  the  sale  of  lands, 
ever  since  the  act  of  Geo.  77.  and  in  my  opinion  there 
cannot  be  a  stronger  proof  than  this,  of  the  meaning  which 
the  latter  clause  of  this  act  has  been  constantly  deemed 
to  have.  Much  has  been  said,  and  whole  volumes  of  au- 
thorities read,  to  prove  the  necessity  of  a  set. /a.  ag.iiiist 
the  heir:  we  will  not  deny,  but  that  before  the  act  of 
Geo.  II.  a  aci.fa.  was  necessary,  but  that  was  a  case  ex- 
tremely diiroreiit  from  this  before  the  court,  and  is  fully 
answered  by  staling  the  dift'erence  only  betweceti  the 
nature  of  real  estates  in  England  and  here,  since  the 
passing  of  the  act  of  Geo.  77.  all  tiic  authorities  cited,  are 
of  easei*  where  the  |)arty  against  whom  the  original  judg- 
ment or  proceeding  w'as,  ilied  since  the  Judgment,  so  that 
there  is  no  person  left  against  whom  to  takeout  execution, 
who  was  (larty  to  the  judgment  ;  hut  the  counsel  for  the 
lilainliff  cannot  sliew  one  precedent,  where  the  scJ./«.  lias 
ever  been  deemed  necessary,  the  jiarty  against  whom  the  (07) 
judgment  was,  remaining  the  same,  and  in  the  same  con- 
dition, without  any  ciirumstaiiGe  to  vary  his  case,  as 
when  the  judgment  was  obtained.  Tlie  party  to  be 
called  in,  must  be  the  representativeof  the  jjerson against 
whom  the  judgment  was  ;  the  sci._/a.  is  always  founded 
upon  a  record,  to  which  the  jiersiMi  to  be  served  with  the 
sci  fa.  was  a  party.or  [ni\y.  Our  act  of  1784,  fier.c.  204  is 
the  first  instance  where  the  heir  could  be  call''d  inliy  sci. fa. 
li|)oii  a  judgimnt,  after  the  death  of  the  ancestor;  and 
without  the  aid  uf  that  act,  the  sci. /a.  grounded  upon  the 
record  of  a  judgment  against  the  ex^'cutor,  would  never 
bave  Inin  against  the  heir,  because  to  that  record  he  was 
neither  party  uor  privy.     The.9ct./«.  is  nat  »  comihoii 


80 


Haywood's  repouts. 


Apr.  1794'law  writ;  It  was  introduced  by  tlie  statute  of  Wpstiniu- 
^^f-r^sm^  ster,  the  2d.  Car.  45,  and  lay  only  upon  the  fonnddtiou 
of  a  record,  to  which  the  defendant  was  (larty.  It  in 
very  incorrect  therefoi-e  to  say,  tliat  the  sci.fa.  lay  in  the 
case  now  bcfoi-e  the  court,  against  the  heir ;  where  tlio 
act  of  Geo.  II.  provides  no  sucli  |iror.es-?,  and  where  it  is 
apparent  the  statute  of  Westminster  does  ilot  authorize 
the  use  of  it  in  such  a  case  as  the  present,  wiioi-e  tiiere  is 
a  complete  defendant  in  being,  and  the  circumstance  of 
his  case  not  altered,  from  what  they  were  at  the  time  of 
the  Judgment  by  tlie  intervention  of  time  or  otherwise. 
And  indeed,  if  the  sd.fci.  would  lit^  in  such  a  case  before, 
what  was  the  use  of  passing  tlie  act  of  178  4,  Rev.  c.  204? 
The  great  number  of  authorities  read  by  the  plaintiflf's 
counsel  arc  good  law  in  England,  but  very  inapplicable 
here,  and  can  have  no  weiglit  in  tlie  jticsent  cause.  Here 
the  sci.fa.  is  not  necessary,  nor  could  it  be  used  upon 
the  same  principles  as  in  Englan.l,  i  mean  in  this  case 
of  a  judgment  against  the  executor,  to  whom  tlie  heir  is 
no  representative;  and  when  tlie  executor  himself  is  a- 
live.  4  Bac.  Ah.  411.  Our  Legislature  hath  been  care- 
ful, to  avoid  the  inconveniences  attending  the  recovery  of 
debts,  which  1  have  befoi'e  |)ointed  out,  lest  tlie  act  of 
Geo.  II.  might  not  be  deemed  sufficient  to  eradicate  them, 
an  act  hath  been  passed  for  that  purpose  almost  ■uerJaiint 
from  the  act  of  3  and  4  JV.  and  J/.  Tiiis  proves  how 
great  these  inconveniences  were  considered  to  be,  and 
also  that  the  act  of  /F.  and  .V.  was  not  in  force  in  this 
country.  I  must  therefore  conclude  for  the  defendant, 
that  the  lands  of  the  heir  might  have  been  sold  u|)oii  a 
judgment  against  the  executor,  and  that  there  was  not 
any  necessity  for  a  sci.  fa.  to  have  issued  against  tiic 
iieir,  that  indeed  it  could  not  have  been  used  in  the  pre- 
(68")  ^^"^  case,  and  that  the  lands  wliicli  arc  tlie  subject  of 
this  controversy,  were  well  sold  by  the  Shi-riff  to  Mont- 
fort,  under  whom  the  defendant  claims. 

Counsel  for  the  Plaintiff  in  reply — Though  a  deed  be 
not  destroyed  by  fire  or  water,  but  by  otlur  means,  tiie 
party  who  vvishes  lo  use  it  ma),  by  proving  its  existence 
formerly,  and  its  contents,  avail  himself  of  it  ;  and  where 
lie  is  not  entitled  to  the  custody  ot  the  deed,  less  proof 
will  be  required  of  its  loss.  Di'struction  by  fire  or  wa- 
ter in  the  cases,  citid,  are  put  by  way  of  examples  only. 
JSitfi.  254.  2  fi.  C.  ,J6r.  title  evidence.  Uere  we  have 
made  HU(  h  proof  liotli  of  it->  existence  and  contcnt^t  as  if 
proper  to  be  auuinitted  to  a  jury. 


HAYWOOU's    REPORTS.  81 

The  recital  in  the  SIicrifT's  deed  is  good,  against  A^pr.i794. 
person  claiming  utide)'  the  the  deed.  Ld.  Evid.  100. —  *-^'"^''>«»' 
Where  a  deed  is  accepted  by  a  party  named  in  tlie  body 
«f  (he  deed,  but  ^^ho  (lid  not  seal  it,  and  wliere  tlie  inden- 
tnre  is  made  in  tlie  third  person  atid  accepted,  it  will 
estop  as  nmch  as  if  the  party  had  executed  it.  Co.  Litl. 
230,  23],  352. 

Tlie  second  section  of  the  art  of  limitations  was  made 
to  validate  titles  irregularly,  though  honestly  obtained, 
before  the  jiassing  of  the  act,  and  has  long  since  had  its 
effect.  Indeed  from  the  passing  of  tlie  act,  ail  such  titles 
as  are  therein  described, were  confirmed  by  it.  The  third 
section  was  made  togi\e  title  to  a  possession  for  seven 
years,and  it  o[;erates  at  tlicsamc  lime  both  for  thepnssesor 
and  against  i!ic  owner.  It  was  made  to  fjoict  men's  ti- 
tles, and  to  prevent  law  snits  after  a  great  length  of  time 
when  evidences  and  witsiesses  migiit  be  lost.  It  is  tliis 
third  section,  and  no  other,  in  tiiat  act  which  can  maturi; 
possession  into  title.  It  is  a  mistake  to  say,  t!ie  second 
section  has  any  operation  of  that  kind.  Possession  ad  • 
versely  kept,  and  tliat  known  to  the  former  owner,  is 
surely  a  sntnricnt  possession  to  make  title.  There,  by  the 
confession  of  Carter  iiimst-lf.  ILiijs  was  in  possession  foi- 
himself,  exclusive  of  any  <itiicr  person's  claim  or  title. — 
This  is  notoriety  enough  to  Carter,  and  he  would  not  be 
allowed  afterwaids  to  distiiib  such  possession  by  entry. 
The  doctrine  of  t«diing  entriis  by  a  descent  cast — thlso 
liginating  in  feudal  principles,  is  notsupported  solely  by 
tliem,  it  is  founded  also,  upon  a  iii'incijile  ofjusticc, namely, 
that  he  who  could  and  would  not  attack  the  ancestor, 
who  knew  (it  is  presumable)  how  to  defend  himself, 
might  not  to  be  suffored  to  impeach  the  heir,  who  is  gene- 
rally an  iufanf,  and  who  will  require  time  to  he  informed 
of  the  true  state  of  his  title.  It  was  not,  because  the  ten- 
ant of  lands  in  England  had  not  the  j)roperty  of  them,  (^\i. 
•h;ir  they  could  be  sold  by  Ji. /a.  it  was  for  this  reason, 
liiat  an  impro[)er  tenant  should  not  be  forced  ujion  the 
Lord — a  woman  unfit  for  military  duty — an  enemy  of  the 
Lord — a  monk,  or  man  of  religion,  or  otherwise  unfit  for 
dutj — might  be  imiinsed  upon  him,  and  the  military  sys- 
tem, which  first  originated  this  law,  be  deranged  :  Indeed 
the  law  itself  was  continued  afterwards  for  other  reason?, 
when  those  of  its  introduction  had  ceased.  Ever  since 
the  restoration  of  Charles  11.  until  tlie  time  of  our  late 
revolution,  the  tenures  of  this  coiintrv  and  '>r  England 
11.  ' 


82  Haywood's  ukvorts. 

Apr.  1/94.  were  the  saino — Imlli  free  atid  common  socage  ;  so  thai 
^'^'-''^"^  at  tlie  titnt' of  pnssiiis;  tlie  act  of  Geo.  II.  (he  owner  of 
land  in  Eria;l'^ii(I,  was  asmiichtltc  absolute  proprietor  as 
the  ovvni'r  of  land  here.  As  to  tite  additional  inconveni- 
ences, which  it  is  said  the  ait  intended  to  remedy,  name- 
ly, alienatii.n  by  (he  heir  before  action  brought,  an<l  a  de- 
vise hy  the  debtor,  the  act  of  Geo.  II.  lias  very  amply 
j)rovided  ai^ainst  them,  by  a  means  niurh  mure  consistent 
with  principles  of  Justice,  than  the  defendant  seems  to 
imasfini';  if  we  attend  to  tiie  wording  of  that  act,  we  shall 
find  it  adopted  and  enforced  hei'c — tiie  act  of  5  Geo.  II.  cli. 
7.  says:  "The  real  estate  of  tiiis  country  sliall  be  assets 
fin- the  satisfaction  of  all  just  debts,  in  like  mantier  as 
real  estates  ai'e  by  the  law  of  England,  liable  to  the  sa- 
tisfaction of  di'bts  due  by  bond  or  oihci"  specialty  :"  then 
what  was  tlie  law  of  England  at  the  time  this  act  speaks  ? 
Why,  if  an  heir  aliened  before  action  brought,  the  act  of 
3  and  4  Tr.  and  M.  said,  he  should  be  liable  for  the  value  : 
so  he  is  here,  sinie  the  passing  of  tlie  act  of  Geo.  II.  for 
all  Just  debts  ;  in  like  manner,  if  a  <lebtor  devise  away 
his  lands  from  the  heir  at  law,  the  law  of  England, 
io-rvit :  the  3  and  4  W.  and  Jlf.  says,  such  de\  ise  as  to 
creditors  shall  be  void,  and  that  sucli  cirditor  may  main- 
tain an  action  Jointly  against  the  heir  an<l  devisee,  for 
tiie  recovery  of  his  debt :  so  since  the.  passing  of  the  act 
of  Geo.  II.  which  sKlojits  the  law  of  England  with  respect 
to  the  li;iliilit(  of  the  real  estate,  the  lands  of  a  debtor  in  ^ 
this  country,  th<Hig!\  deviseii  away,  make  the  devisee  lia- ^^ 
ble  for  all  liis  just  debts.  By  this  means  the  ancient  rules 
of  law  we  contend  for,  are  preserved — the  heir  or  dev  i-  ;■ 
see  is  still  to  be  sued,  or  a  set.  fa.  or  some  process,  is-,' 
sued  against  him,  his  lands  are  not  to  be  taken  away  by  ' 
a  procerdiug  to  which  he  is  not  a  party  ;  and  at  thesame^; 
time,  the  inconveniences  suggested  by  the  Defendant's  f 
-Q\  coimsel  com(detely  renn>ved.  The  act  of  Geo.  II.  by  itsu 
reference  to  the  law  of  England,  demonstrates  the  inten- 
tion olthe  Parliament  to  iiave  been,  that  the  heii-  or  de- 1' 
visee  should  first  have  notice,  by  some  kind  of  suit,  audi)' 
this  plain  and  oloioiis  meaning  of  the  act,  overturns  the 
whole  system  of  argumentation  founded  upon  the  suppo-^» 
sed  iiicoTMenience,  which  the  act  must  be  made  by  cotW 
strnction  to  remove.  It  is  true,  all,  or  almost  all  thK? 
cases  of  sci.fa.  which  we  have  siiewn,  were  cases  wlicrrf 
the  Defendant  was  dead,  and  no  person  left  who  had  been 
a  party  against  whom  execution  could  be  taken  out ;  but 


Haywood's  reports.'  83 

ail  those  aiithorilies  shew  the  i(iinci|)le,  *hat  Ihcheirran-  Apr  1794 
not  be  affected  but  by  proress  isHued  a.^aiiist  himself. —  ^-^"^"^^ 
What  \vc  contend  foe  is  only  ihis.  tli;it  the  hiii-'s  jiropertj' 
cannot  be  taken  away  but  l>y  a  pi-oceediii?,-  to  which  he  is 
a  party.  We  are  not  anxidiis  it  should  he  by  a  sd.  fa. 
or  any  other  [lartiriilar  mode — we  say  we  slioiild  liave. 
been  called  into  court  by  some  j)rnces-^  or  oihcr.  and 
have  had  an  opportunity  to  delend  iii:r  rrceintld  ;  hut  it 
is  a  mistake  to  say.  the  statule  of  Jycstminsier  the  9.nd, 
introduced  tlie  sci.fd.  it  was  substituted  by  the  statute  (o 
(he  orii^inal  action,  which  at  common  law  it  was  neces- 
sary to  ctinimence  on  a  jiidj^nirnt  that  had  been  dormant 
for  a  year  and  a  day.  All  the  auilxnifies  on  the  subject 
of  a  sci.  fa.  against  tiie  hrir,  are  inools  of  this  ;  lor  none 
of  (hem  ai'C  grounded  upon  ihi'  aulliorii_v  ot"  thestatulc  of 
Jrcstminstcv,  but  upon  the  common  law,  and  that  maxim 
of  universal  justice  that  no  mm  ought  to  he  condemned 
iiuheai'd. 

Our  act  of  17S4,  Tiev.c.  204  was  indeed  the  first  that  ex- 
pressly directed  the  scf./«.  against  the  lieii- upon  ajudg- 
Mient  against  the  rxecutor  ;  but  tiie  preamble  of  that  act 
expresses  the  doubt  that  had  been  entertained  respecting 
the  projier  method  of  arriving  at  a  sale  of  the  lan<ls  of  a 
deceased  debtor.  It  is  evident  the  Legislature  supposed 
the  lands  could  not  be  sold  by  a  judL;-n)i'iil  against  tiie 
executor  only,  and  if  the  act  of  Geo.  II.  had  snade  lands 
liable  to  sale  without  any  sci. /a.  merely  upon  a  judgment 
against  the  executor — why  wei'e  tluxedoubis  entertained? 
Where  was  the  necessity  of  this  aci  ?  The  same  provi- 
sion it  makes,  was  alread*  made  by  a  much  more  speedy 
and  short  method,  by  the  act  of  Geo.  II. 

It  is  argued  that  because  afti-r  the  act  of  Geo. //.  lands 
were  sold  by  afi.fa.  which  at  the  common  law  was  a 
chattel  writ,  theicfore  lands  after  the  passing  of  this  act, 
were  deemed  ihatiels.  otlnrwise  the  fi.  fa.  could  nr)thave 
touched  them — but  was  not  an  alteration  made  in  this 
writ  to  accommodate  it  to  the  purpose  of  tlie  act  of  Geo. 
II.?  Have  not  tiie  words  "'lands  a-id  leneincnts,"  been 
added  to  tiie  common  law  writ  nl' ft.  fa.?  This  makes  a  V^) 
wide  rlifference  between  Hie  romnion  law  writ  of  ^-  fa. 
umlfi.  fa.  used  in  Ihis  couniry.  If  ilie  common  law 
chattel  writ  of/L  /'«.  as  it  is  callrd.  would  have  effectrd  a 
sale  of  the  lanil,  for  what  |iuipi>se  were  the  words"  lanils 
and  tenements"  added  ?  It  is  clear',  it  was  apprehended 
the  lands  could  not  be  s(dd  under  (he  words  of  the  old 


84 


UAVWOODS    KEPOIMS. 


Apr.  1794  xvr'it,  '•'goods  and  chattels  of  the  debtor  ;"  and  this  seems 
*~^'"^'™^^  to  be  one,  ainfljigst  (lie  many  sti-ong  reasons  there  are, 
foi'  I'cjecting  theconstriiciion  which  thisargnnient.  drawn 
IVoni  the  nature  of  the  writ  ol'T'-/;'- ''> '"lP"dcd  to  sup- 
port. 

Judge  Jilacay — 'I'he  whtdc  wiiglit  of  this  labored  case, 
seeing  lechicible  to  ibis  <|ups'i'ii!,  what  is  the  true  con- 
struction of  the  5//(  Geo.  II-  ch.  7.?  And  1  am  of  ojii- 
Jiion  this  act  meant  i'\  i)ro\iilo  for  two  things,  the  sale 
of  lands  foi-  di'bts,  and  the  inaking  tliem  liable  to  all  just 
•lebts  in  the  hanrls  of  the  hcii- :  and  I  am  of  opinion, 
lliat  since  the  act  of  Geo.  II.  the  .same  distinctions  be- 
tween real  and  personal  propcrtv  is  to  itr  kejit  up  as  be- 
fore— and  that  lands,  np(m  ihe  death' of  an  ancestor,  de- 
scend to  the  heir,  and  pei'sonal  chattels  go  (o  the  execu- 
tor as  before  ;  and  lands  in  tiie  hands  of  an  lnir,  are  no 
nioie  to  be  affecttd  hy  an  aciion  or  judgment  against  tlic 
executor,  tliaii  the  personal  estate  in  the  bands  of  an  ex- 
ecutor, are  to  aftected  by  aj(!<lgmcnt  against  the  heir: 
'  their  ititercsls  are  totally  distinct  and  separate.  As  to 
the  IMaintiflf's  title,  if  a  deed  be  lost,  and  the  existence 
of  it  be  proven,  a  co))y,  or  if  no  copy,  pand  evidence  may 
be  given  of  tiie  contents  :  if  these  proofs  be  satisfactory, 
lliey  arc  to  be  received.  The  jury  have  heard  some  evi- 
dence for  both  these  purjioses,  it  is  for  them  to  consider 
of  the  weight  it  deserves  to  have  ;  if  satisfactory  to  them 
they  will  find  the  riaintiflf's  title  complete. 

Judge  Sshc — I  am  of  ojiinion  the  5th  Geo.  II.  ch.  7. 
meant  to  make  lands  liable  to  the  payment  of  debts,  &  so 
far  as  regards  the  payment  of  debts,  to  have  them  proceed- 
ed against  as  personal  chattels;  and  that  they  descend  to  the 
lieir  chargeable  with  all  such  just  debts  as  shall  be  reco- 
vered against  the  executor' — hundreds  of  tracts  of  land 
liave  been  sold  since  that  act  u{ion  the  supposition  tliat 
the  law  was  such. 

The  Plaintifl'  had  a  verdict  and  judgment. 

NoTt. — Upon  a  case  ciicumstuiiced  exactly  as  tliis,  tried  at  H»lirax: 
lliree  or  four  terms  ago,  between  Baker  and  Asht,  Jii'ige  Williams 
delivered  the  same  opiuion,  or  to  the  like  cfl'eci,  as  Judge  Jilacay  now 
gave.  And  tl.e  Plaintiff  recovered  upon  the  same  grounds  us  the 
(72^  Plaintifl' in  this  case  now  recovered.  Judge  .Mocaj  being  ihfn  upon 
the  bench,  but  not  giving  an  express  opinion  himsf  If — havin^j  no« 
given  it,  wherel))'  the  opinion  of  a  majority  of  the  Jiiilgiu  upon  this 
point  being  obtained,  it  is  supposed  it  may  now  be  received  and  cited 
as  law — accordingly  this  case,  asbeingofgrtat  importance,  aiidafl'ect- 
iiig  perhaps  mucli  real  properly  in  this  country,  has  been  reported 
here. 


HAYWOOD'S   BEFORTS.  85 

Note.— Vide  Jet  af\7U,  Rev.  c/i.  22G— 1789,  Rev' ch.  311—1791,  Apr.  1794 
Sev-  ch.  352—1806,  Rev.  ch.  704.— .\iid  see  the  cases  of  Spaight  v.  ,.^-v->! 
Wade's  heirs,  2  Murph.  295,  and  Tremble  v  Jones's  heirs,  3  Miirph. 
579,  which  :iie  constructions  upon  the  two  first  intiilioned  Acts. — 
The  design  of  all  tliese  cnactmi  nts  is,  that  alter  it  has  been  judicially 
ascertained  tl]:ii  the  personal  represeniativos  have  no  assets,  or  not 
sufficient  to  satisfy  tlie  Plaintiff's  drmand,  the  heir  or  devisee  shall 
have  notice  by  sci.  fa.  to  come  in  and  contest  the  fact  of  lands  de- 
scended, or  may  make  up  a  collateral  issue  with  tlie  personal  repre- 
sentatives and  have  the  question  of  assets  aKain  enquired  into.  The 
heirs  nr  devisees,  if  they  sell  the  land  before  action  hrought  or  pro- 
ces.«i  sued  out  against  tliem,  become  personcdiy  liable  for  the  value  of 
the  lands  :  but  if  the  lands  continue  in  the  hands  of  the  heirs  or  devi- 
sets,  or  are  fraudulently  Sold,  ihe  lands  themselves  only  are  liable  to 
the  execution.  The  lands,  ifioiid /</?  sold  before  the  sci./u.  it  seems 
would  not  be  liable,' and  in  such,  the  creditor  must  look  to  the  per- 
sonal responsibility  of  the  heir  or  devisee. 

Den  oil  tlie  diinise  of  Rubci t  Bell  v.  Gicen  Hill. 

Fraud  is  not  b.ircly  to  be  su^..;e6te(l,  but  must  be  proved.  A  judg- 
ment by  default  upon  a  tobacco  bond,  is  not  fin;d.  A  judjjment 
(final)  binds  1.  nds,  from  the  tirne  of  its  rendition,  as  to  purchasers, 
from  the  Defendant,  but  not  so  as  to  defeat  the  title  of  one  pnrchas- 
injj  under  the  execution  of  a  subsequent  judgment.  As  between 
creditors,  it  is  not  the  first  judgment,  but  the  first  execution,  that 
gives  the  preference. 

This  was  an  iiction  of  ejectment, upon  the  trial  of  which 
at  this  term,  the  following  facts  ajipeared  in  evidence, 
vix>:  In  liie  month  of  Febi-nary,  in  tlie  j-ear  17S0,  and 
for  a  long  time  precediiig,  William  Masscij  was  seisi'd  in 
fee,  in  the  connt.v  of  Franklin,  of  llie  premises  in  ques- 
tion ;  and  in  that  month  the  AdminiMtralor  of  Thomas 
Bell,  dec.  hrou.:;ht  suii  in  the  Count}  Court  of  FraidiMn 
foi- the  recovery  of  a  sam  of  money  due  fro.-n  the  said 
William  Massey  ti>  tlie  stiid  Thomas  Bdl  in  his  lifetime  ; 
and  in  the  said  term  had  a  judgment  by  default;  whicli 
was  continued  from  term  to  term,  till  June  term  1783:  at 
which  term  they  obtained  a  final  jngnieiit ;  but  before  tlie 
issuing  of  any  writ  of  execution,  in  the  month  of  August, 
1783,  the  Defendant,  Jilassey,  olitaiind  an  injunction  a- 
gainst  the  judgment  and  execution,  whicli  was  dissolved 
on  the  18tli  April,  1789;  and  afU'vwanh  a  venditioni  ex- 
ponas v\as  issued  the  24th  July  1789,  upon  which  the 
Sheriff  sold  the  land  to  the  lessor  of  the  I'laintiff,  and 
executed  a  deed  to  him,  dated  the  5tli  Februaiy,  1790. — 
On  the  other  side  it  appeared,  that  in  June  term,  1783, 
in  the  same  County  Court,  one  Devaiu}  brought  suit  a- 
gainst  the  same  William  Massey,  npim  a  bond  for  five  thou- 
sand pounds  weight  of  tobacco,  and  had  jiidginent  by  de- 


86  >lAY\VOOU's    KEl'OKTS. 

Apr.  1794. fault;  and  in  Si-pt.mhcr  term,  17S3,  lie  oblaineil  a  flnal 
'^^'"^''^^  Juilginpnt :  wlifrpiijioii  cNoculioii  issued,  and  on  tiie  C'2iid 
June,  1784,  tiie  SliciilTsold  to  Green  Hill,  lie  liavinj^  ex- 
pres.s  nolice,  at  (lie  tinn'  of  the  purchase,  of  the  Jiidsmenl 
obtained  by  BeWs  Adniinisti-ators,  and  heiiig  warned  by 
the  Administrator  not  to  purchase;  and  the  Stici  iff  exe- 
cuted a  deed  to  him,  dated  the  22iid  of  Se|»tember.  1784. 
The  Di'I'endant  also  made  title  anntlier  way  :  on  the  Cnd 
of  July,  i7S2Jf"iliimn  Jlnsseif  conveyed  to  hi.s  son  Jo  mes 
Jilasscij,  and  he  in  the  mouth  of  Jnne,-17S4,  to  Hill;  and 
in  June,  1784,  the  deed  fnwn  J\[(issc>i  to  his  son  was  re- 
gistered  :  but  Jilassetj,  the  falhei-,  contimu'd  iu  possession 
iinlii  after  tin'  sale  to  Hill,  and  then  moved  away — 'I'his 
James  Masset/  was  not  a  person  of  any  substantial  pro- 
,  ,^  perty  at  that  time;  sometimes  he  had,  and  sometimes  he 
*-  '  liad  not  property  ;  what  he  had  was  hrou,a;ht  frniii  fo- 
reign places,  and  it  was  freqin-iuly  claimed  and  recover- 
ed by  better  owners.  In  September  or  October,  1784, 
lie  oflereif  lo  buy  land  of  one  of  the  witnesses  and  offered 
Hill's  bond  in  payment,  upon  which  tliere  was  an  in- 
dorsement of  two  hundred  pounds  paid  to  n'iUlam  Mas- 
seij  ;  and  twelve  months  before  that  lime,  the  witness 
said  it  was  talked  of  that  William  Massey  had  sold  to  his 
son;  and  another  witness  saiil,  that  smnc  time  in  1784, 
James  Massey  drove  beef  from  HilVs,  ami  delivered  them 
to  the  old  man  ;  and  late  in  1784,  or  in  1785,  let  him 
have  a  horse  ;  and  that  in  1784,  James  hati  several  ne- 
groes. 'I'he  original  di'e<l  from  tVilliam  JIas$ey  to  James 
was  not  produced  but  the  copy  only — huUtm' Joel  I'arish, 
whose  naiiiiJ  was  subscribed  as  a  witness,  said  be  bad 
frequently  endeavmired  lo  recollect  wln'iber  he  ever  did 
attest  such  a  deed,  and  lie  could  not  i-emi-mbei-  be  evei' 
did,  or  ever  knew  of  such  a  conveyance. — This  was  the 
evidence  on  both  sides. 

Hayrcond  for  the  Plaintiff— Tlie  deed  from  ff'illiam  to 
his  son,  »as  fraudulent.  It  appears  fi'om  the  amount  of 
the  judgment  of  BeWs  Administrators,  comjiared  with 
the  price  of  the  land  as  it  is  stated  in  the  Sheriff's  deed, 
and  even  in  that  of  IFilliam  Massey  \n  James,  that  he  was 
indebted  to  the  Administrators  singly,  in  a  much  greater 
sum  tlnin  his  property  was  worth,  and  the  C(nilest  be- 
tween these  parties  arises  from  the  circumstance  cif  his 
in.solveiicy.  His  pi'operty  was  not  adeipiate  to  the  dis- 
charge ol  botli  debts — one  or  other  of  them  muitt  lose  his 
debt,  owing  to  this  circumstance.      There  are   several 


IIAVWOOI)  S     UI:;i'()ltTS. 


87 


circiimsfaiices  tlie  law   has   (Icoinrd  evidences   of  fraiul,  Apr.  1794. 
when  attending  the  conveyances  of  an   iiivnlvcd    man. —  v-i^^^s«» 
Those  wlio  mean  to  rover  llieie  |)r«|ierty,  fijenerally   nse 
evevy  colouriiii!^  of  I'airness  their  invention  can  discover; 
and  the  fra«(l  of  the  parties  can  im  oUierwise  be  devcli)|icit 
but  by  circumstances:  positive  procifjs  never  obtainable. 
Amongst  the   circumstances  tlic  law  deems  evidences  of 
fraud,  there  is  none  stroii!;;;ei',  because  none  more  suspici- 
ous, than  that  of  the  conveyance  of  an  iiidebted  father  to 
his  cliihl.     The  law  <leems  it  IVaiidnicnt  as  aijainst  a  cre- 
ditor, unless  the  child  can  prove  a  valuable  consideration 
actually  paid.     2  J\'ds.  syo.     1    Mo.  76,     Ambl.  599.— 
In  the  |)reseiit  case,  nothing  was  paid  by  James    till   tlic 
latter  part  of  year  1784,  when  it  seems  some  cattle  were 
delivered,  tliat  came   immedialely   from   the   defendant; 
wiio,  bf lore  this  delivery,    had    berouif    a    purchwsei'  in 
June,  1784,  both  from  the  Sheriff  and   from   James;  but 
fnmi  1782,  in  the  uiontii  of  July,  the  time  the  conveyance 
to  James  bears  date,  until  late  in  liie  year  1784,  no  lUoney     f~^\ 
was  paid.     Had  this  been  a  fair  transaction,  would    not 
some  slei)s  have  been  taken  in  all  this  time  to  have  pro- 
cured payment?     Can  it  be  supposed  tlie  old  man  would 
have  rested  satisfied  for  upwards   of  two  years,   havinc; 
made  an  absolute  ccniveyance  to  his  son,  who  was  at  best 
in  slender  circumstances,  and  as   proven  in  evidence,  of 
sliglit  cliai-acter,  without  payment,  and  even  without  any 
security  for  it  ?     Is  it  not  a  circnmsiauce   of  suN|)icion, 
that  this  deed  was  not  recjistered  till  June,  1784,  the  very 
time  IliU  became  the   purchaser  ?     Is  it    not   suspicious, 
that  the  original  is  now  to  be  produced,  when   it  is   evi- 
dent ./ames  ./V«os£i/ did  not  take    it   from   the   Registei-'s 
office,  having  no  use  for  it.  Hill  being  (he   owner   of  the 
lanil  at  the  time  of  registration,   and  ever  after?     Is  it 
not  a  matter  of  some  cuiiosity,  that  the  witness   cannot 
remember  ever  to  have  subscribed   that  deed,   and   that 
there  is  no  vestige  in  his  mind   of  any    remenihi-ance   of 
such    a   deed  ?     Another  mark   of  fraud    mentioned    in 
Twyne^s  case,  3  Bep.  81,  is,  that  the  donor  continued  in 
possession  and  used  them  as  liis  own,&;c.     Here  the  con- 
veyance is  said  to  have  been  made  in  July,  1782.  yet  the 
grantor  remained  in  possession  till  the  year  1784,  in  the 
latter  part  thereof;  and  the  witnesses,  who  are  all  of  the 
neighbourhood,  tell  us,  they  heaid  intthing  of  this  con- 
veyance, except  Mr.  JVorn'ood,  who  says,  he  had  liearil 
the  sale  talked  of  twelve  months  before  ;  James  oflfered 


88  Haywood's  reports, 

Apr.1794.  to  buy  liis  land  in  September  or  Octobpr,  1784,  a  period 
''^''^^>ir  tliat  will  bring  us  back  to  September  or  October,  1783, 
when  Vevanifs  jmlginent  was  obtained,  and  when  of 
course  it  became  necessary  to  devise  some  method  to  get 
rid  of  jBe/i's  judgment,  obtained  in  tlie  June  |ireceding. — 
Another  mark  of  fraud  mentioned  in  Twi/iie's  case  is,  if  tho 
conveyance  be  made  pending  the  writ.  Ilei-e  BeWs  Admin- 
istratorsbad  sued,  theirsuit  was  dcpending&Judgment  by 
delault,  obtained  in  February,  1780,  was  continued  till 
June,  1783 ;  and  in  the  interim,  July,  178-2,  tho  deed  ap- 
jiears  to  bear  date — can  a  conveyance  like  this,  immedi- 
ately and  directly  tending  to  frustrate  the  suit  of  a  cie- 
ditor  for  a  just  debt,  receive  the  sanction  of  a  court  of 
justice  ?  Does  it  not  appear  plainly,  tliattbernntracting 
parties  had  this  debt  of  Bell's  Administrators  in  view,  at 
"tiie  time  the  conveyance  was  made  in  July, 1782,  if  in  fact 
it  was  cxi^cuted  at  that  time  ?  Had  the  injuncli(m  beeu 
dissolved  at  any  time  before  Hill's  purchase,  surely  Bell's 
execution  would  have  prevailed  over  such  a  conveyance  ; 
^75^  and  the  circumstance  of  Hill's  becoming  a  piirciiaser,  and 
making  a  payment  to  old  JIassctj,  cannot  make  that  a  va- 
lid transaction,  which  at  tlie  time  of  his  purchase,  and 

before,  was  totally  void    as  to  Bell's  Administrators 

Here  then  we  have  almost  every  circumstance  of  fi-aud 
mentioned  in  Twyne's  case,  and  several  tliat  are  not 
mentioned  in  it — here  is  an  indebted  father  conveying  to 
Lis  Son,  who  pays  no  valuable  consideration  ;  which  con- 
veyance is  made  pending  a  writ  against  him,  and  in  se- 
cret;  the  grantor  com inncs  in  possession,  and  uses  the 
premises  as  his  own — to  my  appreheu!»ion,  if  Twyne's 
case  is  law,  both  according  to  tlie  principles  of  tiiat  case,  , 
&thecomraonsense  of  mankind,  there  cannot  be  a  case  of  r 
more  ajjparent  fraud  than  the  prisent.  I  will  now  there- 
fore dismiss  this  partoftlic  case,  without  further  consi- 
deration, little  doubting  but  that  that  part  of  the  Defend- 
ant's tit!e,wbicli  rests  upon  this  convey  ance,  w  ill  be  deem- 
ed fraudulent  and  void. 

As  to  the  other  part  of  his  title,  the  facts  are  briefly 
these — After  the  judgment  of  Bell's  Administrators,  and 
while  the  writ  of  execution  is  suspended  by  injunction, 
Devant/'s  judgment  is  obtained,  and  the  land  sold  under 
it  to  ilie  Defendant ;  afterwards  the  injunction  is  dis- 
solved, execution  upon  the  lirst  judgment  issues,  the  land 
is  sold  under  that  also,  and  the  Piaintilf  becomes  ihe 
purchaser.     Upon  which  stateiucni  I  bt-g  leave  to  ul»- 


Haywood's  ueports.  89 

Fjci've,  tliat  \n  England,  tlie  elegit  is  tlio  only  cxrculion  Apr.  379*. 
that  aflbcted  the  lands  of  tlie  di-btor.  It  was  intfodnced  ^•^■"^''^«*-' 
when  the  advantas^es  of  commerce  be_u;an  to  be  perceived, 
and  the  extension  of  credit  became  necessaey.  in  tiie  13th 
oiExvd.I.  All  tliat  tiiis  statute  says,  is  :  "  Tiiat  v.heu 
a  debt  sliall  be  recovered  oe  acknowlcdtred  in  the  kin(i;'s 
conrt,  01'  damages  a(ijiid,c;ed,  it  shall  he  hereaftce  in,  the 
election  of  him  who  sues  Ibe  snch  debt  or  dama,^-es,  to 
sue  out  a  writ,  that  llie  Shei-iff  sliall  cause  lo  he  niadc  of 
the  lands  and  cliatlels  of  tlie  debtor,  or  that  the  SlicrifT 
shall  deliver  to  hitn  all  the  chattels  of  the  debtor,  cxcejit 
ing  oxen  and  beasts  of  (he  pioiipih,  and  tlic  half  of  his 
land  until  the  debt  slnill  he  leviec!,  by  a  roasnnabje  ap- 
jiraisenient  and  extent,"  &c.  Not  a  wo/d  is  said  oC 
bimling  tlie  lainis  by  elegit,  from  the  time  of  the  judg- 
ment; hut  as  this  was  a  remedial  law,  made  for  the  be- 
Tiefii  of  creditors,  it  was  proper  to  advance  the  remedy 
by  construction  as  far  as  was  consistent  witli  t!ie  princi- 
ples of  justice,  a!)d  to  makeeacii  spi'cies  of  property  liable 
to  the  execution,  as  far  back,  for  the  benefit  of  crcdilors, 
as  the  nature  of  that  piopeily  would  admit.  In  the  caso 
of  personal  |)ropcrly  it  was  already  liable  from  tlie  teste  ('-^i\ 
of  (he  writ,  and  it  mi,:rlit  have  been  productive  of  injus-  ~  ' 
tice  lo  liave  stretched  tlie  relation  any  further:  it  was 
going  a  good  way  in  favour  of  the  creditor,  to  say  his 
cxeculion  should  reach  llie  goods  in  the  hands  of  a  bomt 
fide  purchaser,  who  had  acquired  them  after  lire  teste  of 
tlie  writ  of  execution.  These  goods  might  not  have  been 
purchased  in  the  neighbourhoo<l  of  the  Uefendant's  resi- 
dence, where  the  purchaser  might  have  iiad  notice  of  the 
Delendanl's  circumstances — they  might  have  been  re- 
moved to  a  distance,  and  sold  in  places  where  neither' the 
Defendant  nc,r  his  circumstances,  were  known.  But  as 
this  was  law  at  the  time  of  (lassiiig  the  act,  and  as  that 
was  made  manifeslly  for  tlie  benefit  of  creditors,  the 
Judges  concluded  it  was  mosi  |)i'o|)ei"  to  let  tliat  lien  upon 
the  (lersonalty  remain  as  it  was — but  with  respect  to  the 
real  estate,  ihey  thmight  this  act  sliould  be  esten<leil  as 
far  as  possible,  witlmul  inconvenience,  for  the  benefit  of 
creditors.  It  was  made  lor  their  benefii,  and  sh(nil(l 
receive  a  construction  promotive  of  the  views  of  the  Le- 
gislature ;  and  as  lands  could  not  be  removed,  and 
so  were  not  liable  to  the  inconveniencies  attendant  on. 
personal  property  just  nosv  mentioned,  ibe  courts  said, 
tliey  should  be  bound  as  from  the  time  of  the  jtuJginent- 


90  haywood's  bkports. 

Apr.ir94.  n  was  in  compliance  with  tlie  views  of  the  act  to  give  it 
^■'^"■'"''•^  siioli  a  coiistnirtion,  ami  arcordinsly   it   hath   prevailed 
evpr  since  ;  ami  tlie  de^t,  formed  agreeably  to  tliis  cnri- 
sti'iictioii,  commands  delivery  to  be  made  of  a  moiety   of 
the  lands  the  dihtor  had  the  day  of  the  Jiidjjment  render- 
ed, oi-  at  any  timi' since.     Cunniug.  verb.  Elegit.  '2  Inst. 
395.  S96.     7  Itep.  38.     Co.  Lilt.  222.  a.  SO.    'l  ffej).    99. 
I.  JAIL  Ent.  572,  575.     1    Morg.   PL    348,   345.    342.— 
Hawk.  M.     Co.  LitL  157,  102.     2  Jfk.  600,  440.441  — 
8  Rep.  in.     Cro.  Jac.   512.     By  the   law   of  Enslaiid 
therefoic,  as  i-eceived  an<l  used    in    tliis   country    till  the 
time  of  |)assing  the  act  of  5  Geo.  II.  eh.  7.  wliirh  will    bo 
commented  u|ioii  hy  and  by,  these  lands  would  have  hi-en 
undoubtedly  bound  hy  the  first  judt;mcnt.     But    it   may 
be  said,  tlie  woi'd  binding,  as  applied  to  executions,  means 
only  a  lakinc;  from  the  debtor  a  power  to  dispose   of  his 
effects  until  the  ilebt   is    satisfied.     Tliis   doubtless    is   a 
part  of  tlie  meaning  of  ihat  term,  hut   is  not   the   v.liole 
uieaniiif;  of  it  when  used  in  relation  to  lands  to  be  affect- 
ed by  the  execution  :  it  means  also  that    the   first  judg- 
ment creditor  tias  the  first  right  to  satisfactitni  preferably 
to  any  othi'r  judu;ment  crediior,     Vigilautibus  non  dormi- 
eniibitsjura  subveniuiit.  He  w  lio  has  taken  the  earliest  mea- 
(77)     sures  to  secure  his  debt,  and  has  hi'en  at  the  trouble  &  ex- 
pence  to  obtain  his  jmlgmcnt,   should    not  be  excluded 
the  benefit  of  it  by  another  creditor  who  has  substantia- 
ted his  demand  at  a  later  period.     We  shall  not  cite  au- 
thorities to  prove,  that  the  Difendant,  aftrr  a  Judgment, 
cannot  dispose  of  his  lands  himself.     No  part  of  our  case 
requires  it,  and  we  presume  besides  in>  lawyer  will  deny 
it.     But  it  is  imjioi  tani  in  this  part  of  our   progress,  to 
prove  ihiit  the  rr<ditor  acquires  a  lien  u|ion  the  land   by 
his  judgment;  and  that  the  first  lien  is   first   entitled  to 
satisfaction.     Tliis  point  is  completely  established  by  the 
following  authoritifs.    Co.  'Litt.  287,  b.  or  289,  b.  4  Hep. 
66,  6.     Off.  Exec.   138.     HuIL  104,    105.     Carlh.   255. 
1  Mo.  253.     3  Fie.  399.     2  Ru.  M.  864,  341.     3  Ba.  M. 
26      2  Ba.  M   433.     These  cases  are  express,  that  W  Ji 
obtains  a  judgment,  and  then  B,  and  B  has  the  land  ex- 
tendt-d,  that  Ji  may  afterwartls  take  out   his  execution, 
and  extend  the  same  lands,  and  evict  the  possession  of 
B :  and  no  other  reason  can   be  assigned   for  this,  but 
that  the  first  lien  is  by  law  entitled  to  the  first  satisfac- 
tion.    Even  in  the  case  of  personal  chattels,  which  at  the 
coiumun  law  are  bound  from  the  teste  of  the  writ,  though 


Haywood's  rf.pokts.  91 

liiere  are  Roine  coiitradirtdi-y  opiiiions  to  he  found,  (lie '^P'- '''94' 
true  rule  is,  that  tlie  vendue  undi-r  an  oxenition  of  a  sub-  '-^^'"''^^-^ 
sequent  teste,  was  liable  to  bi-  evicted  of  tlie  |i(»sseHsion, 
by  a  vcnde-,'  under  an  cxecniion  of  a  prirn-  teste  :  and  it 
was  (o  prevent  this  inrnnveniencc  <if  (hi'  ronininn  law, 
that  the  statute  of  fi'auds  was  made  in  Eti<i,'land  ;  which 
diiorts  the  goods  to  he  bound  from  the  tielivery  of  the 
writ  to  the  SIseriff.  this  being  a  mat'er  of  mor'e  notoriety 
than  the  teste  (»f  an  excrntion,  and  bcltc-i- ailapted  to  give 
j)ul)lieity  to  tlie  fact  of  tlie  goods  being  hound.  All  the 
cases  in  the  bonks,  when  ju-nperly  ronsidered,  nil!  be 
found  to  proceed  upon  a  principle  of  tcndei-ness  to  an 
innocent  vendee,  under  an  execution  of  a  suhsequent  teste, 
not  apprised  nf  tlie  former ;  but  none  (tf  tliese  cases  go 
so  far  as  to  protect  a  vendee  under  an  execution  of  a  sub- 
sequent teste  or  delivery,  knowing  of  anolher  execution 
of  a  prior  teste  or  delivei'y.     2  Term  Rep.  731.  732. 

I  mention  tliese  things  to  shew  liie  nnironiiity  of  the 
law  in  its  adherence,  in  all  cases,  to  this  rule,  (iiat  the 
first  lien  is  to  he  first  satisfieil  ;  and  because  they  may 
be  of  some  service  to  o]ipose  the  ai'gumcnts  to  be  made 
use  of  on  the  other  side.  [Judge  Jislic — Me.  Altor- 
torney  you  had  better  answer  the  arguments  of  tlie  coun- 
sel on  the  Jither  side,  alter  they  are  made,  and  not  by  an- 
ticipation.] It  w  ill  be  insisted  on  the  othei-  side,  that  the 
sale  of  lands,  and  of  personal   estate,   are   in  all   things  .. 

upon  the  same  footing;  I  hope  I  shall  he  excused  think-  \'°) 
ing  as  I  do,  that  it  is  of  importance  to  prove,  that  this 
Judgment  of  Bell's  Administrators,  had  it  taken  jilace  be- 
fore the  act  of  Geo.  II.  would  have  liound  tlie  lanil  fnnu 
the  time  of  tin-  jmlgment  given  ;  and  that  it  would  have 
been  entitled  to  satisfaction  preferably  to  any  judgment 
afterwards  rendered  ;  anil  that  an  elegit  upon  it,  would 
over-reach  any  elegit  upon  any  suliseqiienl  judgment  :  it 
seems  to  m<'  <'sseiitial  to  establish  these  several  iioinis  as 
incontesiibly  as  possible,  before  we  proceed  to  consider 
whether  the  law  has  been  altered  by  tlie  act  of  Geo.  II. 
One  ot'ier  remark  I  would  beg  leave  to  add  in  this  part 
of  the  argument,  (I  will  he  as  short  as  possible)  it  is  this 
— that  notv\itlislaiiding  the  executiou  of  a  jiulgment  is 
fliispended  liy  wiit  of  error,  certiorari,  deaiii  of  tin"  De- 
fendant, or  other  cause  ;  yet  the  form  of  the  elegit,  issued 
after  the  removal  of  the  obstacle,  is  ne^er  altered;  and 
altliough  such  suspension  maj  have  continued  for  ynrs, 
when  the  elegit  issues,  it  is  to  take  .iiid  deliver  the  moiety 


92  UAV wood's    ItEl'OUTS. 

\pr.  1794  (,f  Hie  lamls  of  (lie  ilfbtor,  whicli  he  had   at  the  iiiue  of- 
^"^^^"^i^  the  Judgment  rciiilcrrd,  or  i\t  any   lime  since.     Now  if 
till-  HiisiiciisidU  of  tlie  cxcciilioti  had  been  dpciiipd   in   law 
to  give  a  ^ircffrcncc  to  an  intoftn«"diate  ju»ljj;nient  credi- 
tor, who  could  itroriire  the  lands  to  hf  extended  and  de- 
livei-ed  to  liini,  dining  the  snsj)ension  of  the  |»i-ior  execu- 
tion, I  lie  law  would  have  provided  an  elegit,  after  such  sus- 
pension, of  luiotiicr  foim:  it  would  at  least  have  been  con- 
ditional as  to  the  lands  tlie  d(  btir  had  at  ihe  time  of  the 
Judgment.     Co.    Litt.    115.    b.  sajs:  "That  one  of  the 
best  ai-gmricntB  or    proofs  in   law,    is  drawn   from  the  __ 
right  enlries  and    course  of  pleading,    for  the   law    it- 
self ypeaketh  bj  good  pleading;"  and  tlienforc  Li</ieton 
.saith,  "  It  is  pro\ed  by  pleading,   as    if  pleading    were 
ipsius  legis  x-iva  vox."     As  thcrelore  after  «uch  s(isprn> 
.sion  the  form  of  the  elegit  still  continues  the  same,  if  ig 
an  evidence,  that  the  law    remains  the   same   also  ;  and 
that  the  writ  of  erroi-,  by  its  intervention,  nnikes  no   al- 
teration in  the  lien  wliatever.     It  is  furllier  demonstrated 
by  this  circumstance,  that  when  a  judgment  is  obtained 
against  an  ancestor,   the   lieir  is    procceilod  against  by 
sd.J'u.  which  treats  him  as  tei'i'c-tenant  not  as   heir.     3 
Rep.  12,  IS,  ^T.  and  no  action  of  debt  will   lie   upon    the 
Judgment  against  him  as  heir  ;  and  he  must  be  proceeded 
against  only  as    teri-e-tenant,    for  this  reason — that    the 
land  is  bound  by  tiie  Judgment,  and    is  in  custodia  legis, 
._,         for  tlie  benefit  of  the   creditoi-,  and  does   not    descend   to 
V°)     him  as  heir,  but  upon  condition,  till  the  debt  be  satisHed. 
All  this  is  performed  by  the  mere  opcrj^tion  of  the  judg- 
ment itself,  by  iis  attaching  upon  the  land  the  moment  it 
is  pronouured  :   whence  it  may  be  inferred,  that  if  a  sus- 
pension by  writ  of  error,  certiorari,  and  other  suspending 
process  at  law,  is  incajiahle  to  give   a   |)refcren(C  j  and 
that  in  the  jncsent  case  the  lien  of  the  Plaiiiliff's  judg- 
ment during  Ihe  continuance  of  the  injunction,  and  after 
its  dissolution,  continued  as  unimpaired  as  it  would  have 
done  had  the  injunction  been  a    writ  of  error  only  :  in 
~»hich  case  it  is  evident  (as  the  law  was  up  to  the  time 
of  the  act  of  Geo.  II.J  the  Plaintiff,  after  the  determina- 
tion thereof,  would  have  been  entitled  to  satisfaction  out 
of  the  land,  even    though    another  subsequent  Judgment 
creditor,  as  Devany  was  in  the  present  case,  had  caused 
it  tu  be  extended  and  delivered  by  an  intermediate  exe- 
cution.    Indeed  it  would  be    very   preposterous,    if  the 
Defendant  should  have  it  in  his  power  by  procuring  ui- 


HAYWOOD'S    nEPORTS. 


S3 


not  procuring  a  writ  of  crnir  or  injunrlioii,  to  ^ive'^P'-^''^^* 
preference  to,  or  |)ost|ione  tlie  first  judtjiiiftit  creditor  to  "■^""'^^^ 
a  second,  according  to  his  vvliiui  or  caprice  :  it  would 
open  a  wide  door  to  fraud,  and  in  a  great  iiieasuro  put 
ail  creditors  in  tiie  power  of  a  del)(or  who  was  not  able 
to  pay  all — he  might  say  if  you  will  agree  to  allow  me 
sucit  and  such  advantages,  you  shall  have  the  henrfit  of 
your  judgment,  otherwise  yon  siiall  have  nothing;  I  will 
procure  a  writ  oferrtir,  oi-  injunction,  and  in  theinieritn 
•  confess  judgment  to  another,  or  suffer  him  to  obtain  judg- 
ment for  want  of  a  di-fence,  and  to  have  his  execution  sa- 
tisfierl  out  of  tlie  property  I  have.  Were  die  law  so,  it 
would  speak  in  contradictions  :  your  exicution  is  entitled 
to  preference,  but  tiie  Defendant  may  defeat  you  of  that 
jireference  if  lie  pleases.  Again,  it  would  be  in  many 
instances  to  put  it  in  the  power  of  tiie  ofticer,  to  give 
preference  to  whom  he  picascs.  If  in  this  case  the  She- 
riff, after  having  notice  of  tlr  lien  of  Bell's  judgment, 
had  desisted  from  selling  to  Hill,  then  BcWs  execution 
Would  have  iuid  the  preference,  and  would  have  been  sa- 
tisfied after  the  dissolution  of  the  injunction  ;  and  tlie 
Sheriff  would  not  have  been  punishable  for  not  selling,  for 
he  might  have  returned  the  truth  of  the  case,  that  the 
land  was  bound  by  a  prior  judgment :  but  if  he  proceeds 
to  sell,  according  to  the  doctrine  insisted  on  for  the  De- 
fendant, the  sale  is  good,  and  there  is  nothing  left  to  sa- 
tisfy the  judgment  of  Bell's  Administrators:  and  I  do 
not  know,  noi- do  I  believe  the  Sheriff  can  be  made  an- 
swerable to  SeZ/'s  Administrators :  because  in  the  case 
tif  lands,  lie  only  sells  such  right  as  the  Defendant  hath,  (SO") 
and  the  purchaser  takes  it  with  its  circumstances;  that 
is  to  say,  in  the  present  case,  liable  to  such  prior  lien  as 
JieU's  Administiators  had  on  it  by  means  of  their  judg- 
ment:  so  either  *vay  the  Sheiilfis  safe,  and  has  it  more- 
over in  his  jiower,  according  to  what  is  insisted  upon  for 
Defendant,  to  give  pi-elerence  to  the  one  or  tiie  other  at 
Ills  elrction.  The  grounds  of  such  a  conclusion  cannot 
be  solid.  There  is  no  rule  of  law  better  cstaidished  than 
this,  that  the  act  of  the  Dt  fendant,  of  law,  or  of  the  otficer, 
shall  nevir  affect  or  diininish  tlic  right  of  a  third  person, 
the  Plaintiff.  5  Hep.  87.  1  Eep.  lb-.2.  a.  105.  b.  106.  h. 
'  So  that  it  is  clear,  neither  the  act  of  the  Defendant  in 
procuring  the  injunction,  nor  of  tUe  law'  in  permitting  it 
to  issue,  nor  of  ilif  Sheriff  in  selling  the  land  to  Hill 
when  he  did,  could  place  the,  Plaintiffs,   wifli   respect  to 


94 


HAYWOOD'S    KEPOUTS. 


Apr.  1/94.  t],pj,.  jjp,,^  j„  a„y  worse  situation  than  if  tUesc  several 
'*''"*"^^  acts  had  never  takpti  plare  :  and  if  those  acts  do  not  vary 
this  case  from  common  cases,  I  think  we  arc  warranted 
in  drawing  this  conclusion,  that  had  tlie  case  now  hcforc 
the  court  occurred  before  the  act  of  Geo.  //.  the  Plaintiff's 
execution  tliou.£;li  last  issued  and  exerutetl,  would  have 
given  the  best  title  to  tiic  land  in  ([uestion.  This  brings 
us  to  the  act  of  Qeo.  II.  It  will  he  argued,  that  since  the 
])assing  of  that  act.  and  the  act  of  As^icnihly  of  1777.  ch. 
2.  sec,  29.  the  execution  upon  a  Judgment,  is  by  Ji.  fu- 
not  by  elegit;  and  that  tUeJi.  fa.  against  lands,  operates 
precisely  in  tiie  same  manner  as  liie_^./'«.  against  perso- 
nal chatteU  ;  which  it  will  be  urged,  gives  a  preference 
to  the  first  vendee,  even  though  he  purchase  under  an 
execution  of  a  later  judgment.  It  is  true,  the  rase  of 
Smatkomh  and  liuckingham,  reported  in  Salk.  20.  in  L. 
Ray.  and  other  books,  tends  that  way  :  in  Salkeld.  Ilic 
court  arc  represented  to  have  said,  at  common  law,  if  two 
writs  had  been  of  the  same  teste,  the  Sheriff  was  bcnind 
to  execute  that  first,  which  was  first  delivered  ;  hy  tlie 
same  reason,  if  two  writs  nifi.Ja.  come  to  the  Sheriff  in 
one  day,  he  ouglit  to  execute  that  first  that  came  first  to 
hand,  for  he  has  no  election  ;  and  in  this  case  there  is  a 
jirins  and  posterius  in  the  same  day,  in  conseqneticc  tiie, 
Shei'iff  makes  himself  liable  for  executing  the  writ  first 
that  came  last.  Upon  this  case  I  would  beg  leave  to  re- 
mark, there  are  two  things  said  that  are  strongly  in  fa- 
vour of  the  Plaintiff — he  ought  to  execute  that  first,  that 
first  came  to  hand  :  by  the  act  of  frauds  and  perjury  in 
^England,  the  delivery  of  the  writ  to  the  Sheriff  created 
the  lien  on  the  goods — is  not  this  then  precisely  the  same 
(81)  thintj  as  to  say,  ihc  execution  of  the  first  lien  shall  be 
first  satisfied,  else  why  execute  that  fiist,  that  first  came 
tu  hand  i  The  second  is,  that  the  Sheriff  has  no  election 
— this  is  tantamount  to  saying,  tliat  the  Sheriff  has  no 
power  by  acting  or  omitting  to  act,  to  give  preference  to 
which  he  pleases.  I  would  further  remark  upon  the  con- 
clusion, but  indeed  I  do  it  with  great  diffidence,  as  it  is 
a  conclusion  of  Lord  Holt's — in  consequence  the  Sheriff 
makes  himself  liable,  &c.  It  seems  to  be  repugnant  to 
the  t«o  former  branches  ;  for  if  the  |)ower  of  the  Sheriff 
extei'ds  not  so  fai'  as  to  sell  under  which  he  pleases  first, 
but  he  (uii^ht  to  sell  under  the  execution  of  the  prior  lien, 
can  his  doing  that  uliicli  he  ought  not  to  do,  validate  the 
transaction,  und  give  a  title  tu  (he  purchaser  who  kiiovvs  . 


Haywood's  heports.  95 

of  tlie  prior  lien,  and  consequently  of  tlie  wrong  doing  of  Apr.  1794. 
tlie  Slieiiff ?     Ami  tliis  conclusion,  in  fact,  is  in   opposi-  ^■^"^'">-' 
tion  In  many  iiutliorities — the  statute  nf  frauds  in   Eng- 
land altered  tlio  cotninonlaw  uliit  li  i^ave  a  lien  from  the 
teste — iliat  act  ajives  it  only  from  the  delivery  of  (he  writ 
to  (he Sheriff,    ll  is  laid  down  in  2  E.G.  M  k  in  L.  Rmj. 
252.  that  tills  ac(  was  made  (o  assist  a  (lurchaser  in  mar- 
ket  ovei-t.     It  was  thought  hard,  that  a  6(3Ha^(Ze  purciia- 
ser  ill  market   overt,  should  be  liable  to  a  seizure  of  tlie 
goods,  only  because  there  was  an  unknown  execution,  of 
a  teste  prior  to  the   purchase  ;  therefore   the  act    malies 
the  biniiing  the  goods  to  relate  to  the  time  of  the  deliveiy 
of  tlie  writ,  not  to  the  time  of  the  teste  of  the  writ,  as  at 
the  common  law  ;  as  to  all   otiier   |tersons   the   common 
law  remains  ;  that  is   to   say, ,  as  between  creditor  and 
debtor,  and  as  between  creditor  and  creditor,  tlie^.  fa. 
binds  from  the  teste  of  the  writ  ;  and  in  Term  Rep.  731, 
732,  Jlsliursf,  Justice,  says,  hut  the   Lrgislature  saw  the 
inconvenience  and  hardsliip  wliicli  v\ould  fall  upon  inno- 
cent purchasers,  ifthe  vendee  under  tiie  second  writ.were 
liable  to  be  dispossessed  of  ihegoods  which  he  bad  bonajide 
bought ;  and  ihercfore  they  guai-d  against   it  by  tiie  sta- 
tute of  frauds :  this,  s'ajs  he,  I  understand  was  the  sole, 
object  of  the  act.     'i'his  is  a  plain  declaration,  that  if  tlie 
statute  of  fi'ands  had  not  been  passed,  the  vendee   under 
the  secomlji.fa.  by  the  rule  of  the  common    law,   might 
have  been  dispossessed  by   the   vendee   under  the    first; 
this  is  confoimable  with  the  two  sentences  I  liave advert • 
cd  to  in  the  case  of  SmaUcomh  and  Buckingham,   as  re 
ported  by  iSViiA-eW,  though  in  direct  opposition  to  the  con- 
clusion of  that  case.    Justice  Ml lur St  further  says,  the  act 
jf  frauds  was  only  iniendid  to  protect  the  p<»ssession  of 
j)urchascrs  under  an  execution — how  was  this  effected  ? —     (^  ■^; 
Not  by  saying  that  a  vendee  under  an  execution  of  a  sub- 
sequent lien,  slionld  hold  against  the  vi-ndee  under  an  ex- 
ecution of  a  prior  lien  ;  but  by  lemoving  the  lien    itself, 
to  the  time  of  delivery  of  the  wiit  to  the  Sheriff,  an  act 
of  some  notoriety,  that   might   serve   to   give   notice    to 
purchasers,   «ho  might  search   the   Sheriff's   ollice   be- 
fore  they    purchased  ;  but   as  well  since  that  act  as  be- 
fore in  England,  a  vendee  under  an  execution  of  a  subse- 
quent lien,  must  give  way  to  a  vendee  under  an  execu- 
tion of  a  prior  lien,  even  in  the  case  of  personal  chattels. 
Forproof  of  this  position,  I  rely  upon  the  cases  last  cited; 
all  of  tthlcl)  prove,  that  purchasers  in  market  overt,  and 


<)6 


UAVWOODS    KEPORTS. 


Apr.  li'94.  under  executions  of  tlic  common  Liw^  wci'c  liable  to  be 
*'*^~"'^^  evicted  by  subsequent  purclnisers,  unfler  executions  of  a 
prior  teste ;  and  tbat  tlic  Parliament  relievfd  tliein  f>f 
this  inconvenience  in  part,  by  saying  tlie  goods  of  a  debt- 
01' should  not  be  bound,  but  ffimi  the  delivery  of  the  writ; 
the  consequence  of  wiiich  will  he,  th.it  there  will  be  few- 
er persons  who  purchase  in  the  lace  of  an  execution  of  a 
prior  lieu  since  that  act,  than  bt'l'ore  ;  bc^cause  the  means 
of  obtaining  knowledge  of  this  priority,  is  rendered  more 
easy  by  the  act,  than  it  was  by  the  common  law  :  and  let 
it  be  further  remarked,  upon  the  case  of  Smallcomb  and 
Buckingham,  that  it  was  determined  with  much  hesitation, 
and  seeming  uncertainty — In  Sdlkeld  if  is  subjoined,  that 
tiie  bearer  of  tlie^./cj.  said  to  tlie  SheriflT,  he  was  not  in 
baste,  80  took  out  no  warrant,  nor  left  any  fee  ;  and  this 
inclined  the  opinion  of  the  court  more  strongly  ag.iinst 
him.  This  leaves  it  in  doubt  upon  what  principle  tlie 
court  decided,  wheilipr  njjon  what  they  took  to  be  the  rule 
of  law,  independent  of  the  fraud,  or  whether  upon  the 
circumstances  of  its  being  an  aitemjit,  on  the  pai't  of  tlic 
Plaintiff  to  protect  tlic  giiods  against  the  second  execu- 
tion; or  whether  tiiey  dicided  upon  both  these  considera- 
tions Jointly.  I  take  the  triilli  to  he,  tlie  court  proceeded 
ujion  the  princi|)Ie  of  the  Plaintiff's  attempling  to  co\er 
the  goods  by  means  of  his  execution,  and  so  prevent  the 
other  creditor  from  liaviiig  any  satisfaction  at  all,  even 
out  of  the  goods  whicli  would  liave  remained  unexhaNsted 
by  bis  execution.  Tliis  is  a  circumstance  that  undoubted- 
ly ought,  and  by  all  the  authorities  would  have  postponed 
him.  I  inl'er  this  to  haxe  been  ilie  ground  of  the  decision, 
not  only  because  it  is  so  intimated  by  SalkeUl,  but  also 
because  in  a  report  of  the  same  case,  5  J^o.  377.  Holth 
rcjiiesented  to  say,  it  is  fit  the  law  should  be  settled — 
(83)  here  w  as  an  honrst  s.ile,  y<ui  put  in  tlie  writ,  and  let  it  lie 
longer  ;  then  ccniies  the  other  and  lirings  the  writ  the 
same  day,  yet  saith  the  party  to  tlie  Sheriff,  you  may  let 
it  lit',  it  requires  no  haste,  &c.  Tliis  report  plainly 
indicates  the  opinion  i>f  the  >'(>urt  to  have  hei-n  founded  in 
thr  neglect  or  fraud  of  the  Plaintiffin  the  first  execution. 
Tills  case,  iherefure,  can  have  but  liitle,  if  any,  N\eigbt! 
as  an  authority  in  one,  wlicre  the  plaintiffin  the  execu- 
tion of  the  first  lieu,  has  not  hreii  guil'y  of  any  fraud  ori 
ncgli'cl  ;  and  supposing  xUv  fi.  Ja.  against  lands,  is  noxvl 
Upon  the  same  looting  in  all  lespects,  as  lUvJl.fn.  against''' 
goods  and  chattels  j  yet  it  dues  nut  prove  that  the  veiideo 


HAYWOOU's    KEP0ttT3.  &7 

under  tlie  execution  is^siied  upon  llic  second  judgment,  has  ^P''-*''^^. 
preference  to  the  xciidee  under  the  first.  But  tlie  com-  *— "'""''"^w' 
tnoti  law  ^vs  established  by  tlie  otiier  casis,  that  tlie  ven- 
dee nudei-  the  exccuiion  of  the  first,  will  have  tho  iirel'er- 
enee.  Vide  Comb.  123.  4  Term  Rep.  412.  where  tliis 
jioirit  is  estahli^hed  by  the  auiiioiity  of  Holt  himself,  and 
the  opiniitii  vindicated  by  the  Jiidgea  of  the  King's  Bi-nch. 
This  suppiisitioti  however  that  the  Ji  fa.  .ijyainst  lands,  is 
in  all  resiiects  like  tlie^'./«.  agai'ist  personals,  thoii.c;li  we 
have  assumed  it  in  argument  for  the  purpose  of  shewing 
that  the  Defendant  upon  the  strongest  ground  he  can 
take  must  give  way  to  the  i'lainiifr — in  nr)t  by  any  means 
tenable,  nor  founded  on  any  principle  of  law.  Lands 
are  still  bontid  by  the  judgment  as  befnre  I  lie  passing  the 
act  of  Geo.  II.  and  in  tlie  same  manner,  whether  they  be 
proceeded  against  by  elcipt,  or  Ji.  fa.  under  the  act  of 
Geo.  IT.  The  ISl/iEdu'd.  1  c.  18.  that  gave  (he  elcgii, 
because  it  was  eiiiicied  for  the  benefit  of  creditors,  ami 
was  a  rcmidial  act.  was  construed  by  way  of  advancing 
the  remedy  and  I'nrtlici  ing  the  security  of  creditors,  so 
that  the  elegit  snbjicted  lands  from  (he  time  of  the  judg- 
ment rendered  ;  and  suiviy  a  snhsetjueiit  act,  intending 
to  bem'fit  creditors  in  a  still  greater  degree,  ought  to  be 
construed  by  siicli  lules  as  will  promote,  extend  and  en- 
large the  advantages  of  creditois — .to  construi'  it  so  as  to 
tak«^  from  a  creditor  any  advimtage  he  had  before,  un- 
less there  be  express  words  for  that  purpose  in  the  act 
itself,  would  offer  un  open  violence  to  the  designs  and  ■ 
viev\s  of  the  Legislature,  to  the  spirit  of  the  act  itself, 
and  to  the  deductions  of  common  sense  ;  which,  without 
any  artificial  rules  of  constiuction,  would  always  sug'- 
gest  the  propiiety  of  promoting,  rather  than  ofrepressinc; 
the  intention  of  the  law-giver,  wliere  a  general  intention 
was  manifest.  These  oliservations  apply  diret'tly  to  the 
5//i  Geo.  II.  c.  7.  which  by  its  title  is  exjiressed  to  be,  and 
evidently  was  designed  to  give,  more  amjile  security  to 
creditors  for  their  debts,  than  they  jiosscssed  under  the  /-g^- 
act  of  I  Sill  Edwd.  I.  Our  act  of  1777  was  made  with 
the  same  view,  and  is  bottomed  on  the  same  piinciples 
as  the  act  of  Geo.  II.  They  are  both  in  pari  materia, 
and  to  the  same  effect  and  purpose  ;  and  as  we  ap|>reliend, 
are  subject  to  the  same  rules  of  construction  :  and  as  there 
are  noexpress  wortls  in  any  of  theseacts, signifying  any  in- 
tent of  tlie  Legislature  to  naiinvv  the  security  of  a  credi- 
tor ill  any  instance,  or  to  i-cstrict  the  lien  he  Imd  before 
1,0 


9S  Haywood's  reports. 

Apr.  1794  by  liis  jmlgiiicnt,  to  tlie  timo  i>f  issuin.^  tlic  execution,  it 
'-''''"^'^^  would  1)0  absurd,  anil  coiitradictoi-y  to  all  rules  of  con- 
struction, fo  say,  tiiat  eithci-  of  tliem  should  iiave  any 
such  operation,  merely  because  by  thein  a  fi./a.  at^ainst 
land  may  be  used,  as  well  as  (he  elegit,  op  say,  instead 
of  it.  It  is  not  the  sinind  of  a  word  that  can  make  such 
an  altecation  of  tlip  law.  In  a  part  so  material,  such  an 
alteration  can  only  be  effected  by  the  expcess  words  of  an 
act  of  I'ailiament,  oi-  by  a  sound  intei()!'etati'>n.  colbct- 
ing  tin-  intents  of  tin-  Lesi'-latufc  in  thint^s  not  expressed, 
from  wiiat  Ihi-y  have  expcesscd  on  tliinj5S  similac,  atid 
which  are  j^overnable  by  the  same  reasons.  Construc- 
tive alterations  of  the  law,  in  its  material  |)arts,  are  not 
to  he  .idinitti'd  but  where  some  valuable  jiurpMse  is  to  lie 
ofiected,  of  more  importance  in  the  scale  of  Justice  or 
policy  than  the  rule  to  be  altered — but  what  valuable 
purpose  can  it  answer  to  change  tite  law  in  the  mannci 
liiry  contend  for  ?  Is  tliere  any  Just  reason,  why  the 
creditor  now,  should  not  have  as  much  security  for  his 
debt,  as  before  the  act  of  Geo.  II.  yet  if  the  lainis  are  to 
be  bound  from  the  teste  of  the  execution,  the  issuing  of 
v,'hicii  may  be  delayed  by  various  means,  by  accidents, 
as  well  as  contrivances  of  the  Defendant,  t'le  creditor 
may  be  defeated  of  bis  remedy  entirely  ?  Would  it  not 
have  been  better  for  the  creditor  then,  that  the  old  law 
should  have  remained,  whereby  bis  Judgn)ent  would 
make  liim  sure  of  his  debt,  as  a,t>'ainst  the  lands  of  the 
debtot,  tlian  to  be  sulject  to  tlie  act  of  Geo.  //.  to  run  the 
risk  of  tlic  total  loss  of  it  ?  If  thiir's  is  the  proper  con- 
struction, has  not  the  act  of  Geo.  II.  made  jnol'tssedly 
for  tlie  benefit  of  the  ci-editor.  by  receiving  such  a  co;: 
struction.  most  clearly  done  him  an  injury  ?  If  \\w  Ji.j'ii . 
against  lands  under  this  act,  does  not  bind  as  frimi  thi 
tinn^  of  the  judgment,  as  the  elegit  did,  but  only  from  the 
teste,  may  not  ihi'  Defendant,  after-  jiulgment,  in  evcrv 
instance,  iirocure  an  injunciion,  writ  of  error,  certiorari, 
or  the  like,  and  cause  the  fesie  of  tiie  execution,  when 
...  peiinitted  to  issue,  to  be  suhseqiu'iit  to  a  sale  made  l»y  ,,''^ 
*-  "''      himself,  or  at  the  instance  of  another  creditoriii  tlie  mean 

time  ?     Is  not  the  security  he  had  before  by  means  of  his  ^a 
judgment  entirely  done  away,  and  all  this  by  a  i  onstruc-o;j 
tion  of  the  act  of  Geo.  //.   which  goes  upon    the    notion,:'';' 
that  he  was  not  well   enough    provided  for   hcforr,   and, 
proposes  to  ameliorate  his  situation  ?     May  not  the  De-,- 
I'endaiit  suspend  the  execution  by  some  of  the   means  be-t- 
fore  mentioned.,  ur  contract  debts  afterwards,  mid  by  a  ' 


Haywood's  tjeports.  99 

confession  of  jiidgmfiit  pi'cfei'  (his  expost  facto  creditor,  ^P'"  '•''94 
to  the  creditor  by  judj^ment  slioiiid  such  a  construction  '-^'^*'^*^ 
prevail  ?  From  this  view  of  thiii,s;s,  I  Ciiiiiiot  but  ho 
firmly  perstiHiled,  that  it  is  dianieti-ically  opposite  to  tiic 
spirit  -.irid  niciuiing  nf  the  act  of  Geo.  II.  and  of  oiii'  act 
of  1777,  to  'i'.xy,  they  have  operated  a  cliaii.a;c  so  detri- 
mental to  the  creditor,  as  that  lands  shoulti  be  bound, 
not  from  judgment  rendered,  but  from  tlie  time  of  the 
teste  nf  tiie  execution  only. 

I  cannot  but  believe  tliat  lands  arc  yet  liable,  as  they 
•were  befoi'e  the  passing  these  acts,  frtnn  tlie  time  of  tiic 
jndt:;ment.  This  is  the  osiiclusion  I  infer  from  consider- 
in.!^  tl]e  case  as  detached  fi-om  any  expicss  provisions  in 
tlie  act,  and  upon  Ihe  supposition  tliat  (liere  are  none 
such  ;  but  it  seems  to  me  Ihe  vv()pds  nf  t!ie  act  of  Geo.  II. 
are  clear  to  shew,  that  lands  are  liabl'-  as  fiom  the  lime 
of  the  judgnii'nt.  Speaking  of  the  manner  in  which 
lands  shall  be  liable,  it  says,  "shall  be  liable  as  assets 
for  the  satisfaction  thereof,  in  like  mannei-as  real  estates 
are  by  the  law  of  England  liable  to  tiie  satisfaction  of 
debts,  due  by  bond  oi-  otiicr  specialty  ;"  it  then  proceeds 
to  direct  that  the  lands  m,\y  be  sold — Tliese  words  pro- 
duce this  question,  How  are  lands  liable  in  England  to 
the  satisfaction  of  debts  due  by  bond  or  otiier  specialty  ? 
The  indisputable  answer  is,  Ihey  are  liable  in  England, 
and  by  tlie  law  of  England,  froin  the  time  of  Ihe  judg- 
ment rendered  against  the  obligor  himself;  and  finin  the 
time  of  the  suit  commenced  against  the  heir,  when  in  his 
hands  by  descent  :  and  in  either  casi?  are  h^iund  to  that 
creditor  who  first  obtains  his  lien  iqum  tlicm,  in  prefer- 
ence to,  and  to  the  exclusion  ol,  evei'y  other  creditor 
whatsoever,  until  his  <Iebt  be  salisfnd — are  tliey  not  then 
by  the  express  words  of  the  act,  liable  iiere  in  the  same 
manner?  These  words  after  ascertaining  the  extent 
of  the  liability  of  lands,  have  continue.!  dial  liability,  in 
terms  as  explicit  as  llie  language  can  liirnisli,  as  it  was 
beCore ;  and  hath  declared,  that  llioiigh  tliey  arc  to  be 
sold  by  nji.fa.  yet  tln-y  are  lo  be  liable  as  in  England, 
at  the  time  of  passing  this  aci,  in  tiic  same  manner  as  if 
the  proiess  had  never  been  changed.  As  fai*  as  I  can  C*^".' 
learn,  the  opinion  of  the  lawyers  of  this  country  have 
always  been,  tliat  lands  are  liable  from  the  time  of  the 
judgment,  (IS  well  between  crediim'  and  creditor,  as  be- 
tween creditor  and  d<>blo!' :  and  there  is  an  act  of  our 
Legislature,  lately  jtassed,   which  shews  that  the_^.  fa 


100  HAYWOOn's    REPORTS. 

Apr.  1794  introilured  by  tliis  statufe  for  tlic  sale  of  lands,  does  not 
^-^"""^^  bind  lilio  the  cliattrl  Ji.  fa.  from  tlio  trslr  only  ;  for  if 
tbe  Ji.  fa.  introduced  by  this  act  took  upon  itself 
the  properties  of  the  ciialtcl  ^. /«.  it  does  so  ihrougli- 
out  and  in  every  instance,  not  in  some  onl>  ;  and 
of  course  if  there  ran  bean  instance  >^he\vn,  wiiere  it 
binds  as  tlie  elegit  did,  (he  inference  will  be,  that  it  binds 
in  that  manner  and  to  that  de_!;;ree,  because  the  act  of 
Geo.  II.  has  not  altered  the  liability  of  the  land,  or  the 
lien  of  tlie  judgment  from  what  it  was — now  can  any 
such  instance  he  shewn?  It  is  well  known,  and  will 
not  be  disputed,  that  at  the  time  the  act  of  Geo.  was  pass- 
e<I  in  England,  if  a  Judgment  was  obtained  against  an 
hiir  for  the  debt  of  his  ancestor,  the  land  lie  iiad  at  the 
time  of  tlie  original  writ  purchased,  was  liable:  that  is 
to  say,  the  lands  were  hound  IVom  the  issuing  of  the  ori- 
ginal w!itj  and  when  iUe  elegit  went  against  the  heir, 
the  Sluriff  might  seize  the  lands  tlie  heir  bad  at  tlie  time 
of  issuing  the  original  writ.  Wood's  Inst.  630,  and  many 
other  books.  But  in  England  as  well  as  in  this  country, 
if  the  heir  aliened  before  the  action  brought,  there  was 
•no  remedj — now,  by  our  act  of  1789,  ch.  39  sec  3.  if  the 
heir  aliens  ht  fore  action  brought,  he  shall  be  liable  for 
the  value;  and  says  nothing  at  all  of  his  alienation  after 
the  action  brought.  Suppose  then  the  heir  aliens  after 
the  action  brought  ;  if  the  ft.  fa.  binds  from  the  teste  of 
the  wiit  only,  the  land  cannot  be  affected  by  it ;  and  this 
absurdly  will  follow,  that  he  who  aliens  before  action, 
and  without  knowledge  perhaps  of  an  action  intended, 
will  be  liable,  when  he  who  aliens  after  a  writ  taken  out 
against  him,  and  served  upon  him,  will  not  be  liable  at 
all.  W  hat  reason  can  be  assigned  for  the  Legislature's 
omitting  to  make  any  provision  in  this  clause  for  the 
case  of  alienation  after  action  brought  ?  Clearly  none 
other  than  this — that  by  the  law  already  in  being,  the 
lands  were  liable  to  execution,  that  the  heir  had  on  the 
day  of  the  writ  purchased  ;  and  therefore  there  was  n» 
necessity  to  say  any  thing  about  the  case  of  alienation 
after  action  brought.  But  if  the  Ji.  fa.  against 
]aiids  binds  only  from  the  teste  of  the  writ,  lands  aliened  .^i 
after  action,  and  even  alter  judgment  are  not  liable.—,  ^jf? 
This  ]  ihiiik  is  one  instance  to  prove,  that  the  Ji.  fa.  a-  .^ 
^87)  gainst  lands,  has  a  relation  to  a  time  prior  to  the  teste  of  jb" 
the  writ.  1  will  now  cite  another — it  is  by  the  same sta*  ff. 
tute  Vkliicb  introduces  the  elegit,  and  bj  the  construction  ^ 


HAYWOOD's    BEroRT!-,  lOi 

upon  it,  that  lands  are  bound  fi-oni  tlip  time  of  the  ai^k-  ^P''"  ^^^^' 
nowledgenicntof  arcroi^nizaiicc  iiiroiirt — "NVhrnrea  debt  ''^^'^^^ 
shall  be  fecovci'cd  or  acknowledged  in  the  Kind's  court,  or 
damages  adjudged,  it  shall  be  in  liieeliTlion,"  &r.  Ifthc^. 
/a.issues  u[ion  a  I'drleited  recognizanrc,  and  the  laiiils  have 
been  aliened  after  the  recognition  and  before  the  issuifig 
Wwfi.Ja.  tiie  lands  aliened  aie  liable — it  is  so  generally 
tmder-itoiid  ;   wei'e  it  not  so,  tlic  reioguizHnces    «e   take 
daily  for  the  appearance  of  iiei'sons  indicted,  would  he  of 
little  effect.     The  process  upon    tliem  is  a  sd.  fa — no 
bail  is  gi»en — tlie  parties  hound  inaj  sell  at  anj  lime  be- 
fore the^.  fa.  issued,  and  depart — is  not  this  an  evil  of 
great  magnitude  ?     Shall  we  introduce  such   an  one   by 
constructitni  ?     All  persons  are  dischargeable  from    pri- 
son upon  recognizance  given    with   sureties,    unless  for 
capital   offences.      May   not  the  greatest  offcndei-s   es- 
cape the  stroke  of  public  justice,  which    their  demerits 
Inay  have  subjected  them  to,  if  the  construction  contend- 
ed for  takes  place — if  lhe_^.  fa.  against  lands,  like  that 
against  the  personal  estate,  binds  only  from  the  teste? — 
1  think  tiiis  is  anotlier  instance  where  it  will  be  acknow- 
ledged, the_^^./a.  against  lands  affixtsthem,  and  attaches 
Upon  them  as  from  a  time  jjrior  to   the  teste  :  and   if  it 
does  so  in  these  instances  why   not  in  all?     If   the  law 
in  these  instances   remains  the  same  as   before   the  act 
of   Geo.   II.   and    notwillistanding   the    writ   of    execu- 
tion is  nfi.  fa.  why  does  ii  not  remain  the   same    irt   the 
case  of  a  judgment  recovered   for  debt  or  damages  in 
comranii  cases  ?     How  couses  it  that  (he  act  of   Geo.  II. 
oi)cratcs  partially,  changing  the  construction  of  (be   act 
of  13  Edrvd.  I.  as  to  some  cases,  and    not   as   to   others, 
when  before  the  act  of  Geo.  II  tlie  words  of  13  Edwd.  I. 
extended  to  all  these  cases  alike  ?     Do  not   these  consi- 
dei-ations  warrant  us  in  saying,  liiat   the^.  fa    against 
lands,  introduced  by  the  act  of  Geo.  II.   lias  relation  to 
a  time  prior  to  its  teste  ?  Do  they  not  prove  the  fi.  fa.  a- 
gainst  lauds,  and  tUvfi.fa.  against  jiersonalsto  be  essen- 
tially different  in  their  nature  and  eDlcts  ?     I  shall  take 
the  liberty  therefore,  until   better    informed,   to   believe 
that  lands  in  this  country  are  liable  upon  nf.fa.  against 
lands,  in  the  same  manner  as  they  were  liable  by  the  law 
of  England  before  the  passing  the  act  of  Geo.  J/,  namclj", 
from  the  time  of  the  judgntent    rendered:  and   that    Ihc 
Judgment  creditor  here  bath  the  same  advantage,  as   he     (88) 
had  by  the  law  of  England,  when  that  act  was  jiassed  • 
that  is  to  say,  to  have  satisfaction  out  «f  the  lands  for  his 


102  irAYWOOU's    REPORTS. 

Apr.  1/94. debt  pipfrrably  to  any  «>tliei'  creditor  wlio  has  a  posterr- 
^■^""''''^^or  Jtidgiiieiir :  hikI  that  lie  carmol  be  deprived  of  this  be- 
nefit by  the  executing  a  writ  of  exeeiitioti  upon  such 
subsequent  judgment.  But  let  it  i)e  admitted  tliat  the  fi. 
fa.  a,£i;aiii>it  lancls  hath  the  same  operation  asihe  /i./«.  a- 
gainst  pei'sonals  ;  yet  «till  tlie  Defendant  in  the  pirnent 
case,  purchased,  knowingof  the  prior  lien  ofthe  I'laintitt's 
claim  upon  tiie  land  ;  and  weighing  his  case  in  the  scale  of 
reason  and  im|)ariialily,  it  comes  plainly  to  this — that 
lie  who  hath  pliing'd  himself  into  tliis  <Iilemma.  that  ei- 
ther he  or  anoiher  must  suffer,  ■\vhcn  by  forbear'ing  to 
ac!.  such  dilemma  wrmid  have  been  avoided  without  the 
sacrifice  of  any  privilege,  ought  rather  to  take  the  coji- 
scquence  of  his  own  imprudence,  than  to  throw  a  loss 
upon  one  who  in  every  respect  hath  liceii  entirely  in- 
nocent, and  who  at  this  moment  is  exposed  to  the  dan- 
ger "f  suffering,  l)y  the  perverseness  of  the  Defendant, 
wlio  had  full  warning  that  what  he  was  about  to  do. 
would  |)roduce  the  consequences  that  have  followed. 

Davie,  for  the  Defendant — The  Defendant  has  set  u|) 
two  distinct  titles  to  the  premises  claimed  by  fhi'  Plain- 
tiff, eitlier  of  wiilcli  ought  to  avail  him  as  a  defence  in 
this  case. 

Tlie  1st,  by  tlie  purchase  and  conveyance  from  James 
Massey,  the  '--2d  of  June,  1784,  who  iiad  purchased  the 
land  Irom  JVilliam  Musstif.  2d  o(  July,  1782,  as  ajipears 

by  a  deed  of  bargain  and  sale,  executed  of  that   date 

The  second  title  under  the  purchase  at  the  sale  made  by 
the  Sheriff  on  Devamfs  execution,  22d  September,  irS4 
. — and  as  a  number  of  objections  have  been  made  to 
the  second  in  opening  tlic  cause,  1  will  proceed  to  exa- 
mine that  first. 

Devamfs  suit  was  an  action  of  debt,  and  the  writ  hc- 
cattie  returnable  to  the  June  sessions.  1783,  when  a  judg- 
ment by  default  was  taken,  ami  an  enquiry  ordered  as 
to  the  value  :  at  tlie  same  sessi<nis  the  administrators  of 
Bell  obtained  their  judgment,  and  the  Counsel  for  the 
Plaintiff  has  com  lude<l,  that  Devamfs  judgment  was 
barely  Intel  locut(My  ;  that  this  biiiig  a  final  judgment, 
became  a  preferable  lien  upon  the  lamls,  and  that  they  i 
Vere  exclusively  bound  for  its  satisfaction.  This  con-  i 
elusion,  however,  is  quest ionabl''  by  the  act  of  Assembly, 
usually  called  the  Court  Law,  sec.  S4.  "The  Defend- 
ant shall  appear  and  plead  ordeniur  within  the  first  three 
(lays  of  the  term  to  which  tlie  writ  sliall   be  retarnablci 


Haywood's  repouts.  103 

(itiierwise  the  PiaiiitifTmiy  liave  JiKl-iiiont  by   dr  fit  ulf,  Apr.  1794. 
which  in  actions  of  debt  sluiU  he  final.,  unifss  when  damn-  ^•^'~''^"*^ 
gcs  are  .suggested  on  tiie  roll."     This  case,  being  an  ac- 
lion  of  dclil  fir  5,000^6.  of  tohaCi-o,  is  not  within  the  ex-      (li9) 
ception  slated  in  the  act — tin  damages  are  in  .suc!i  cases 
ever  "  siiggested  on  tlie  ntli,"  and  the  jiidgnient  is  there- 
fore   final,   according  to  the   law   and    |)ractice   of  the 
court. 

These  judgments  arc  called  "final  judgments"  also  in 
the  s;4th  section,  wiiich  atithDciKos  an  cn(|iiii'_v  as  to  the 
value  tiie  same  term.  'I'lie  same  doctrine  is  lield  in  3d 
Black.  397.  where  it  is  exi)iessly  laf<i  down,  that  when  a 
judgnirnt  is  laken  bv  default,  by  confession,  or  cognovit 
actionem,  ov  by  nmi  sum  inJ'ornKdus,  which  is  a  species 
of  judgment  by  default  in  aclions,  wlicrc  tiie  specific 
tiling  sued  for  is  recovered,  as  in  actions  of  detjt,  llie 
judgment  is  nbsDbilehi  annplcle.  He  admitted  tiiat 
where  the  aclioii  sounds  in  damages,  or  damages  in 
an  action  of  debt  are  suggested  on  tlie  roll,  the  judgment 
cantM>t  he  deemed  final  nntila  «  ritofenquiiy  isexeculed; 
and  that  the  lien,  if  any,  tliCncoiTimences  on  thejiidicmeiit 
being  given  lliereon;  but  tiiat  Ilie  jnilgment  in  Dcvann's 
case  was  alisolule  and  final :  and  if  lands  are  bound  from 
the  time  that  judgment  is  Mgiieil  as  awarded,  then  the 
lands  of  .1/(2ss£;/  were  boinid  by  the  juiigment  of /Jfraiij/, 
as  well  as  b^  the  judi;nient  of  Bell's  administrators. — 
He  also  said  that  if  Massc]!  Inid  died  between  the  sessioa 
of  June  and  Septouibci',  tiie  acii(ni  of  Devanif  would  not 
have  abated,  owing  fo  (he  nature  and  effect  of  the  judg- 
ment :  that  tliis  point  had  cdten  been  deternMued,  and 
ujion  the  |M'inciple  that  such  a  judgment  was  in  its  tia- 
tui'o  final  and  conclusive  as  to  the  Plaintiff's  demand. 

As  to  t!ie  doctrine  that  lands  are  bound  from  the  tin»e 
of  the  judgment — he  said,  be  admitted  in  the  fullest  mari- 
ner, that  tiie  law  had  been  so  settled  in  England  ever 
since  tiic  statute  of  l!ie  iSth  Edwd.  I  in  all  cases  where 
tiie  paity  tonk  nut  an  elegit,  the  only  execution  wdiich  in 
that  country  affected  the  lands  of  the  debtor :  but  wiie- 
tlier  the  lands  are  hIso  bound  in  ibis  country,  when  satis- 
faction is  levied  by  iiji.fa.  deserves  some  consideration 
—and  we  contend  they  are  not. 

Isl.  He  observed  that  by  tlie  common  law,  the  goods 
and  chattels  of  the  debtor,  and  the  animal  profits  of  his 
laud,  were  alone  liable  to  exectition,  a  few  cases  except- 
ed— ns  a  judgment  at  the  <!iiit  of  the  Ring  or  an  actiqo 


104  Haywood's  reports. 

Apr.  1794.  of  debt  against  an  heir ;  &  tlie  lands  were  not  liable,  .s;enne> 
^^"^""^^  rally  speaking:,  until  tlie  statute  of  13tli  Edw.  /.  save  the 
writ,  since  called  an  elegit.  The  dDCtririe  of  lands  being 
bound  fnim  the  time  of  tlie  judgment,  niusttiien  arise  cither 
from  tlic  letter  and  direct  operation  of  this  .statute,  or 
the  construction  whicii  the  English  Judges  have  thougiit 
(90)  proper  to  put  on  it.  The  statute  is  very  short,  in  titese 
words — "That  when  a  debt  sliail  be  recovered  or  ark- 
iiowledged  in  the  King'.s  court,  or  damages  adjudged,  it 
shall  be  hereafter  in  the  election  of  iiim  who  sues  for 
such  debt  or  damages,  to  sue  out  a  writ,  that  the  Shcriil" 
shall  cause  to  be  made  of  tlic  lands  and  chattels  uf  tlio 
debtor;  or  that  the  SlieiifT shall  deliver  to  him  all  Hk 
chattels  of  the  debtor,  excepting  oxen  and  beasts  of  tlic 
plough,  and  the  half  of  his  land,  until  tiic  debt  .shall  be 
levied  by  a  reasonable  appraisement  and  extent,"  &c. — 
In  this  laconic  statute,  there  is  not  one  woi'd  enacting 
that  the  lands  shall  be  bound  from  the  time  of  the  judg- 
ment rendered  ;  nor  in  that  part  of  the  act  directory  to 
the  Sheriff,  is  (here  any  expressinn  used  from  svliirh  such 
a  doctrine  can  be  reasonably  inferred.  It  is  therefore 
apjtarent,  that  the  Judges  in  England,  added  this  con- 
struction to  advance  the  remedy  given  by  the  writcalled 
an  elegit.  Neither  the  statute,  nor  tliis  extraordinary 
construction  of  the  Judges,  altered  the  nature  or  o|)era- 
tion  of  the"  judgment — the  judgment  remained  precisely 
the  same  as  befure  tlie  statute  was  passed,  but  the  statute  U 
gave  a  new  execution  or  remedy  :  and  the  ciioice  of  this  'i 
statute  writ  gave  the  Plaintiff  a  lien  upon  tlie  lands  from 
the  time  of  the  judgment  renilered,  according  to  thecon- 
atruction  of  the  courts. — Thus,  it  was  not  the  rendering 
of  the  judgment  that  bound  the  lands,  but  the  suing  out 
this  new  writ,  and  making  tlie  entry — quod  elegit  sibi 
acecutiononem  fieri  omnibus  catallis  et  medietate  terrct ; 
and  if  the  party  had  made  his  election  to  sue  imt -dfi.  fa. 
or  a  capias  ad  satisfaciendum,  the  lands  would  have  been, 
in  all  respects,  precisely  siiuHt'd  as  if  the  statute  of  the 
13tli  Edw.  I.  had  never  been  iiassed— saying,  it  was 
therefore  clear,  that  it  was  not  the  rendering  the  judg- 
ment, but  election  of  tiie  remedy  given  by  this  particular 
otalute,  which  created  the  lien  upon  the  lands.  The  law 
being  thus  correctly  stated  as  it  stands  in  England  under 
the  1 3th  Edw.  I.  it  was  now  necessary  tu  examine  the 
history  and  doctrine  of  executions  in  this  country — Tlie  ■ 
enmmon  law  chattel  writ  oifi.fa.  wfis'aulburised  to   is- 


HAYWOOD^S    REPOHThs.  105 

sue  aa^ainst  lands  and  tonenionts,  by  tho  statute  of  5tli  ^P'- '79*« 
Gen.  II.  enacting  i-xpt'essly,  that  lands  anil  oilier  ival  es-  -^'^''^^^ 
tate  should  bo  sulijcct  to  tlie  saino  pmcrss,  and  sold  in 
the  same  mannei-  as  jjci'sonal  estates.  In  the  year  1777, 
an  act  of  As'-ombly  was  passed,  enarting  that  all  prnccsa 
wliich  issued  hfrctifore  against  goods  and  cliattels,  lands  (91) 
and  tenements,  or  against  goods  and  chattels  only,  siuinid 
thereafter  issue  against  gotxls  and  chalttds,  lands  and 
tenements  ;  only  diirnting  that  the  SheriflT  should  levy 
on  tlie  goods  and  chattels  in  tin-  first  instance,  and  if 
there  VI  as  not  sutlicient  to  satisfy  the  execution,  it  was 
then  his  duty  to  levy  also  upon  the  lands  :  so  that  ever 
since  the  year  17Si2,  the  writ  of^.  fa.  has  issued  in 
North  Carolina  against  lands  and  tcneineuts  as  well  as 
goods  and  chattels — (he  art  of  Geo.  II.  declaring  Ihcy 
should  be  subject  to  the  same  proceedings  and  process, 
and  be  sold  in  the  same  manner  as  personal  estate.  It  is 
therefore  only  necessary  to  asccrtaiti  in  what  manner  pro- 
perty is  bound  by  awarding  a^  fa.  This  writ  stands 
upon  the  same  fo'.ting  in  tliis  country,  that  it  did  in  Eng- 
land biforo  the  29ih  Cka.  II.  thcrcfoie  the  pro|)erty  of 
the  debtor  is  bound  from  the  teste  of  the  writ,  2  Bac. 
352.  Sulk.  022.  8  Co.  71.  It  is  unnecessary  to  mul- 
tiply authorities  on  iliis  point.  If  a  Plaintiff  should  sue 
out  a  capias  ad  salisf.  the  goods  of  the  debtoi-  are  not  in 
any  manner  hound  ;  but  if  &fi.fa.  is  awarded,  then  the 
goods  are  bound  from  the  tesie  of  tiiat  wi'it,  although  it 
should  not  be  (hiivercd  to  the  Shorifif  for  months  afier- 
wai-ds — so,  in  like  manner  in  England,  if  the  I'lainiiff 
chose  an  elegit,  the  lands  were  bound  Jrom  the  lime  the 
judgment  was  rendered — not  by  the  judgment,  but /ro;n 
the  lime  the  judgment  was  entered.  The  fi.  fa.  has  a  rc- 
trospectiie  operation  to  the  time  of  the  teste  '-f  the  writ, 
the  elegit  to  the  time  of  remlering  the  judgment.  The 
law  ttien  is  clear  tlie_yi. /a.  can  only  ojierate  apon  the 
property  of  the  debtor  from  the  teste  of  the  writ.  There 
in  no  act  of  Assembly  which  alters  this  plain  and  |>j>si- 
tive  law,  nor  any  determination  even  of  the  most  loose 
authority,  which  supports  the  doctrine  advanced  by  the 
Counsel  for  the  Plaintiff.  Thousands  of  authorities  may 
be  easily  cited,  supporting  the  construction  of  the  statute 
of  Edw.  I.  as  it  resjiects  the  elegit,  but  not  one  can  be 
produced,  even  in  this  country  which  transfers  the  quali- 
ty of  retrospective  operatimi  of  'he  elegit  !o  the  writ  of 
fi.fa,  Theji./a.  issued  in  Devuny's  judgment  Jrom 
14 


106  UAY  wood's  reports, 

Apr.  1794, Marcli  sessions,  1784,  and  was  leviod  upon  the  premises 
^■^""''"^^  in  qiipslinn  ;  at  the  sale  tin-  Defendant  became  the  pur- 
chaser of  the  rie;ht  of  William  Masieij,  and  the  SherifT 
«o»\eyed  accnrdin,a;l\.  'Vm-Ji.fa.  und.T  whirh  the  lessor 
of  the  Plaintiff  |)tiichascd,  hears  teste  the  18th  May, 1789— 
if  therefrn-c  it  is  the  prior  teste  tliat  gives  the  execution  % 
preferable  lien  upon  tlie  property,  the  lands  in  question  could 
not  he  affected  by  the  execution  issued  upun  Bell's  judg- 
ment. There  is  also  another  i>hjectii>n  to  llie  PI  lintilf 's  title 
fna\  ^^  derived  under  this sale — If  the  execution  issued  on  the 
^  ■'  judgment  "htained  l»y  Bell's  administrators,  had  actually 
borne  teste  before  that  of  Z)£Taui/,&  had  even  been  delivered 
first  to  the  Sheiiflf ;  yet,  if  the  SiierilT  executed  Dcvuny's 
writ  first,  the  secmid  levying  and  sule  would  be  void  ; 
and  the  vendee  under  tiie  fiist,  or  Devany^s  sale,  would 
keep  the  land.  2  Bac.  356.  Cartli.  419,  420,  1  Salk. 
320.  The  reasons  upon  wliirh  tliis  law  is  grounded,  are 
evident.  The  elegit  never  altered  the  property,  but  the 
ji.fa.  transfers  the  wlioie  property  to  the  vendee — and 
no  man  would  be  safe  under  a  Sheriff's  sale,  if  a  conti'a- 
ry  doctrine  should  prevail ;  and  policy  and  justice  are 
concerned  in  quieting  the  purchaser  imder  a  sale  made 
by  execution. 

Ii  is  also  to  be  observed,  that  In  England,  when  land" 
are  delivered  by  elegit,  upon  the  leversal  of  thejudgmetr. 
by  a  writ  of  error,  the  lands  themselves  are  restored  to 
the  Defendant :  but  this  can  never  he  the  case  when  p, 
sale  is  made  by  virtue  otafi.fa.  then  the  money  only 
can  be  restored — and  sucii  is  the  judgment  of  the  court. 
T!ie  execution  was  valid  at  the  time,  and  tlie  property  is 
completely  changed  and  transferied.  There  is  nothing 
in  the  origin,  operation,  or  consequences  of  the  elegit. 
that  can  be  assimilated  in  any  manner  to  the  old  com 
mon  law  writ  of  Ji.fa.  2  Bac.  370.  8  Co.  19,  143.  C'ro. 
Jac.  246.     Cro.  Eliz.  278. 

He  then  concluded  tliat  the  title  of  tiie  Defendant  was 
good,  made  under  the  sale  on  Devamfs  execution,  in  both 
points,  whether  it  depended  on  the  teste  of  the  writ,  or 
the  priority  of  levying  and  sale. 

He  then  proceeded  to  state,  what  he  called,  tlic  fir.st 
title  of  the  Defendant,  derived  under  the  purchabc  from 
Jamgs  Missey — observing  that  as  to  the  points,  that  vo- 
luntary or  fraudulent  C(niveyances  are  void  as  tn  credi- 
tors, and  that  executions  may  be  postjwned  by  fraud—, 
tbese  were  general  positions  wliicb  no  man  would  ques> 


Haywood's  reports.  107 

iioii — and  made  some  lengthy  remaiks  on  the  <efitiTiiony  Apr, I794t 
brought  forward  on  tlie  other  side  to   impearh  the  con-  ''•^"^''^'^ 
veyance  from  Tfilliam  t'>  James  Massey,  on  the  ground 
of  fraud,  and  concluded  for  the  Defendanl. 

In  reply  i'  was  said — The  judgment  hy  default  docs 
not  bind  llie  lan<l — because  in  reality  these  irucrlocntory 
awards  are  not  Judgments,  but  somefhing  doni-  by  the 
court  towards  putting' the  caine  in  a  condition  for  judg- 
ment. This  appears  by  tiie  11  Rep.  40,  «.  where  these 
proceedings  are  said  to  he  hut  awards  of  the  (U)nrfc  and 
not  definitive  ;  and  sucii  proceedings  cannot  be  pleaded  by 
an  executor  as  judgments  against  his  testator.  1  Salk.  (93) 
42,399.  2  JW/s.  .46.  \053.  And  at  common  law,  by 
the  death  of  the  Difendant  the  wh(de  stiif  would  have  a- 
bated — uidess  there  had  been  a  final  jmlgment,  the  suit 
in  such  ciiTumstatices  may  be  discontinued,  the  Piaintiff 
may  be  nonsuited,  an<l  no  writ  of  ei-ror  will  lie  u()om  such 
award  of  the  court ;  because  judgment  uon  sit  redditum, 
which  tiie  w  lit  of  error  requires.  11  Rep  S8.  6.  40.—- 
The  words  of  the  act  introducing  the  elegit,  are  si  damna 
adjudicnta,  sit  in  electione,  ^c  Now,  the  entry  of  a 
judgment  by  default  is  in  this  manner — "  Because  it  ap- 
pears to  the  court  that  the  I'laintiff  ought  to  recover, 
llierefore."  &c.  It  cannot  be  said  upon  this  entry  that 
damages  are  recovered.  The  entry  of  the  final  judgment 
is.  that  the  Plaintiff  do  recover.  &c.  and  then,  and  not 
before,  damages  ai'e  adjudged  :  and  it  is  in  tiie  election 
of  the  Plaintiff  to  take  out  his  writ  of  elegit,  and  charge 
the  lands,  and  then,  and  not  before,  are  Ihey  bound. — 
Mt.  P.  K.  B.  380.  3  Bl.  Com.  398.  shew  the  mariner  of 
entering  these  defaults — The  writ  t>{  elegit,  speakrug  of 
the  lands  to  be  seized  and  extended,  disrribes  the  lands 
he  had  die  quo  redditum  fuit  judicium  ;  and  Morg.  PI. 
341,  345.  and  11  Rep.  40,  38.  6.  explains  redditxim  sit,  to 
be  intended  of  a  final  judgment.  If  a  suit  in  the  circum- 
stances of  Deranj/'s  in  June  term,  1783,  could  not  have 
abated  by  death,  what  would  have  been  the  situation  of 
the  Plaintiff — he  could  not  proceed  by  sci.  fa.  to  make 
new  parties — this  was  a  proceeding  inti oducid  by  a  late 
statute.  He  would  at  the  common  law  then  be  so  cir- 
cumstanced, that  he  could  neiiher  piociid  ami  get  judg^ 
ment  for  want  of  a  Difendant,  nor  be  dismissed  tlie  court 
by  an  abatement  of  the  suit,  and  he  must  have  lost  the 
benefit  of  his  tobacco  bond  forever.  It  vi'as  not  fi  om  the 
mere  circumstance  of  the  act's  introducing  the  elegit, 


i08  HAVWOOD's    KEPORTb. 

Apr.  1794  tliat  tlie  lands  wprc  b'>und— wliy  should  this  or  any  other 
'^^■"'"'^  circumstance,  independent  of  reason  and  |ir(i|iriei3,  af- 
fect any  thing?  The  land  was  coiistrned  to  be  aflferti'd  by 
tlie  judiiinent,  tbe  better  to  answer  the  spirit  of  tbe  act, 
vliich  was  made  for  tfie  bencfil  of  creditors — it  was  a 
construction  mi'de  to  fonform  to  tlie  will  of  tlie  Le,^isla- 
ture,  ill  a  thing  they  had  omitted  to  ex|irrss — 
which  will,  tbe  Judj^es  discovered  from  the  occasion  and 
the  reason  of  introducing  the  act,  and  from  the  provi- 
sions of  it  in  cases  expressed  by  the  Legislature.  It  is 
true  the  Legislature,  by  tbe  act  of  Geo.  II-  did  mean  to 
put  lands  io  the  situation  of  personal  estate,  .villi  res|)ect 
to  execution  ;  but  it  was  in  one  particular  only,  and  in 
no  other — to-wit:  to  make  them  transferalile  forever  to 
a  purchaser,  by  tbe  sale  and  deed  of  tbe  Sheriff.  It  did 
l'94^  not  intend  to  alter  the  legal  properties  of  land,  nor  tbe 
measure  of  their  liability  to  judgments.  Tbe  lien  upon 
lands  by  judgment  remains  the  same  as  before.  There 
is  no  ground  for  saying  the  Parliamont  intended  a  bene- 
fit botii  to  creditor  and  debtor.  Does  the  act  intimate 
that  the  debtor  laboured  under  any  inconvenience  ?  Does 
it  not  solely  respect  tbe  better  security  of  creditois  ?— . 
It  can  easily  be  shewn,  that  thcji/fa,  against  lands  hath 
many  of  tbe  qualities  of  tbe  elegit — it  affects  lands  in  the 
liands  of  the  heir  from  the  time  of  the  coniinenceinent  of 
the  suit  against  him — tiiis  is  proven  by  the  act  of  1789 
— so  does  the  elegit — and  so  does  not  any  chattel  writ  of 
Ji- fa- — when  a  recognizance  is  given  to  tiie  state  anil  for- 
feiied,  the  Ji./a.  issues,  and  it  affects  tbe  lands  the  re- 
cognizer had  the  day  of  the  recognition  made,  according 
to  tbe  words  of  it :  here  the^.  fa.  like  the  elegit,  re- 
lates to  a  time  long  prior  to  its  teste,  which  a  chattel 
writ  offi.fa.  ever  did.  And  there  has  been,  as  I  am  in- 
formed, a  decision  in  the  court  of  Morgan,  that  lands 
sold  under  »f..fn.  shall  be  restored  upon  tlie  reversal  of 
a  judgment — I  think  it  was  in  the  case  of  Wliitbread — If 
this  be  correcct,  then  it  is  another  instance  where  tbe^. 
fa.  against  lands  has  the  quality  oitin  elegit.  It  is  true, 
many  authorities  can  be  shewn  to  prove,  that  goods  are 
only  bound  from  the  teste  of  a  writ  uYfi.fa.  but  this  ar- 
gument proves  nothing.  Can  it  be  shewn,  that  at  any 
time  since  the  passing  of  the  act  of  Oeo.  II.  it  has  even 
been  held  that  \\\cf\.fa.  against  lands  did  not  bind  from 
the  time  of  tbe  judgment,  but  from  the  teste  only?  It 
appeara  to  me  froiu  erer^  point  of  view  in  which  I  can 


"HAYWOOD'S    REPORTS. 


109 


place  <Iiis  case,  tliat  land  is  liable  to  exeriition  as  from  Apr.  1794. 
the  time  of  (he  judsni'iit  reiideied.  as  it  was  both  here  >-*-n'>«/ 
and  in  England  at  the  lime  of  pas'iing  the  act  of  Geo.  11. 
and  that  ihiit  act  hath  made  no  alteration  but  this — that 
the  lands  are  to  be  sold  instead  of  beinjr  extend"  d  as  be- 
fore, and  cons('f|wenllj  that  the  Plaiiiliff  in  the  case  now 
before  us,  is  entitled  to  recovei-. 

Judj^c  Ashe  had  retired  fi-om  the  bench  before  the   ar- 
guments were  closed. 

Judge  JUacay — This  is  a  dispute  ofgreat  conseqnenre, 
and  it  is  jiropcr  it  should  be  well  scitled,  ai:d  I  \ery 
much  regret  the  necessity  1  find  myself  under  of  di-ciding 
alone — liowe\er.  Judge  Jshe  who  hath  just  left  the  beiK  h, 
coiiiei-red  with  me  before  he  went  a\^aJ',  ai'd  accords  in 
the  opinion  I  am  about  to  deliver.  He  tiien  stated  tIsQ 
Case,  and  proceeded  thus  : — As  lotlie  deed  fmni  Old  Mas- 
sey  to  James,  w  hich  is  argued  to  be  Iraudnlent,  and  tiure-  (95) 
fore  void — Fraud  will  certHinly  vitiate  anj  transaction 
into  which  it  enters — but  it  is  a  rule  of  l.w,  that  fraud 
must  be  proven — it  will  not  be  sufficient  to  suggest.it 
only.  Fop  my  |)art,  I  cannot  perceive  anj  fraud  in  that 
transaction,  hut  the  Jurj  have  Ijeard  the  exidence,  and 
\iill  draw  their  own  conclusions.  Wiih  respect  to  wliat 
is  argued  by  liic  Counsel  for  the  DetVndant,  that  the 
judgment  by  default  upon  the  to'u:icco  bond,  in  June 
teim,  1783,  binds  equally  with  the  final  judgment  of  Seif's 
administratoi'S — the  taiiing  a  judgment  for  want  of  a 
defence  on  such  a  botifl.  is  not  a  final  judgment — it  is  an 
interlocutory  proceeding  only — before  any  execution  can 
issue,  a  jury  must  be  called  in  to  assess  the  value,  and 
then  there  must  be  another  judgment  entered  to  complete 
it.  We  are  also  agreed  that  a  judgment  hinds  the  lands 
from  the  time  it  is  pronounced,  but  in  this  wise  onlj  — 
it  liinders  the  debtor  from  disposing  of  the  land  himself; 
but  if  a^.y«.  issues  upon  a  subsequent  jiidgnnent,  and 
comes  to  the  band  <if  the  Sheriff,  ami  he  selU  the  lands, 
the  title  of  the  vendee  under  such  execution  cannot  ever 
afterwards  be  defeated — it  is  \alid  to  every  pur|iose. — 
Were  llie  law  not  so,  it  would  be  the  most  dangi-rotis 
thing  in  the  world  to  purchase  lands  at  anexectition  sale. 
D-rmant  judgments  might  be  revived  a  long  time  after- 
wards, &  the  innocent  vendee  evicud,  without  the  possibili- 
ty of  ever  regaining  the  purchase  money— w  ho  can  lieap|)ly 
to  for  it  ?  it  is  ti-ue  there  was  such  a  case  decideil  at 
Morganton  as  that  cited  at  the  bar :  but  thcretlie  land  was 


112  Haywood's  ueports. 

Apr.  i794.pjjJ5  dflrmrecontiniiancp — that  lie  liail  recovered  in  an  ac- 
^^^*'^'*^  tioii  agaiiiMt  another  Ot'Cendaiit,  who  was  a  party  to  the 
same  Irespass,  and  had  judifmerit  ai^aiiist  liiin  :  and  nei- 
ther Plaintiff  tior  D?feiidaiit  had  witnesses  now  ready  to 
prove  flie  tresjpass,  or  that  it  was  the  same  trespass  for 
which  damages  had  before  been  recovered. 

Haijivooil  for  the  Plaintiff — Tlie  plea  puis  darrein  con- 
timianre,  is  a  waiver  of  all  former  pleas,  and  amounts  to 
an  admission  of  the  farts  stated  in  the  declaration  :  and 
lie  cited  3  Bl.  Com.  317.  who  cites  Cro.  El.  49.  and  he 
also  ciletl  a  case  lately  decided  at  Salisbury,  between  tiie 
administrators  of  Hdlarij  Butts,  Plaintiffs,  and 

Defendant,  wlifi-e  it  was  pleaded  since  the  last 
continuance,  that  tlie  Defendant  has  obtained  a  release 
from  the  administratrix,  who  was  a  married  woman  : 
whereupon  it  was  insisted  by  tlie  Plaintiff's  Counsel, 
(90  anil  rfii  ruled  by  the  Court,  that  this  plea  is  a  waiver  of 
all  former  ones,  and  an  admission  uf  the  truth  of  the  de- 
claratinn. 

Davie  e  contra — The  act  of  1777,  ch.  2  sec  34.  allows 
thf  Di-fend-int  to  plead  as  many  several  matters  as  may 
bl-  nercssaiy  for  his  defence,  so  that  he  bf  not  admitted 
to  plead  and  demur  to  the  whole;  when  therefore  any 
pleas  necessary  for  his  defence  are  put  in,  they  are  each 
to  be  presumed  to  be  material,  and  not  one  a  waiver  of 
the  otiier  which  liappens  to  be  prioi'  to  it. 

Per  Curiam,  Judge  Mhe  and  Jud.;;e  Macay — A  plea 
puis  (lumen  continuance,  is  a  \vai\er  of  all  foi'm<'r  pleas, 
and  an  admission  of  the  declaration  ;  and  the  Defendant 
not  being  ready  to  prove  his  plea,  Plaintiff  had  a  verdict 
and  judgment  for  one  penny. 

Note. — Vrli-  McDnniel  v.  Tate,  in  a  note  to  Smith  v.  Powel,  posf 
453.     1  Chiity's  Plead.  636. 

Carter's  Executors  v.  Rutland. 

-Neffrops  sent  with  a  daughter  upnn  her  marriage,  or  with  a  son-in-law 
and  dau^ftiter,  lapnma  fntne  i-vidence  of  a  gitt  j  and  if  the  prop  rty 
reniiins  any  leng^li  ot  lime  witli  tliuin,  vci-y  strong  proof  will  be  re- 
quired to  show  that  only  a  loan,  and  not  »  gifl,  was  intended. 

The  following  facts  were  stated  in  this  case  by  the  par- 
ties as  a  case  agreed,  and  submitted  lo  a  jury  on  the  issue 
mm  delinet,  under  the  dirertion  of  the  court  as  to  the  law. 

Fiiri-  ,.:;iefi!  r  ,  in  the  Case  of  Lazarus  Carter,  £xe- 
cutui  oi  Isaac  Larler,  v.  Shudraek  Rutland. 


IIAYAVOOU'S    REPORTS.  113 

Shadrach  Rutland  anA  Fartliena  Carter,  dauglitei*  oF Apr.  1794. 
Isaac  Carter,  (if  Hertloril  cuunt},  wero  iiiHi'i'ied  the  I2tli  ■'■•''^'"'"*^ 
day  (tC  November,.  1775.  About  the  middle  of  tin;  year 
1776,  a  iie!;i-o  woman,  JV*a»m,  with  a  yoiuig  rliilil,  Saul, 
Was  sent  by  Mr.  Carter,  ttt  said  Shadrach  and  Parlhena. 
—J\rann's  i.ssfie  since  is.  Bob,  Hastie,  Tibbie  ajid  Lydia. 
Some  time  in  the  year  1781,  said  Shadrach  and  Parthcna 
were  on  a  Nisit  ai  .l/r.  Cartcr^s,  and  tliey  were  directed 
to  take  a  nei^ro  boy,  Peter,  borne  with  tliriii.  A.i^ain,  in 
the  year  ITSi  or  1783,  said  Shadrach  and  Parthena  were 
on  a  visit  at  Mr.  Carter's,  and  ihcy  wi  n' dir«ilid  to  take 
a  necfro  jjiil,  Maggy,  bonte  with  them — Maggy's  issue 
is,  Uoiner,  Penny,  Vtdct  and  Willis. 

Mrs.  Parthcna  Rutland  died  in  Aoc;iist,  1788,  and  Mr, 
Isaac  Carter  dud  tbe  8lb  July.  1792. 

It  was  also  admitted  on  the  trial,  that  Isaac  Carter 
had  beqm  albed  lliese  lU'sroes  by  liis  last  will,  to  bis 
graiidi  bildreii  by  Parthena,  and  the  executor  had  made 
the  usual  demand,  and  that  the  DL-lendant  was  in  [losscs- 
sion. 

Per  Curiam — When  a  man  sends  property  witli  Iiis 
daugiiter  npon  her  marriai^e,  or  to  bis  son-in-law  and 
daughter  any  short  time  alter  the  marriai^e,  it  is  to  be 
prc>iumed  prima  facie,  that  the  lu-operty  is  given  abso-  /Qg^ 
iutely  in  advancement  of  bis  daughter  ;  and  when  the' 
property  is  permitted  to  remain  in  the  possession  of  tlic 
son-in-law  lor  a  considiiahle  length  of  time,  as  in  tliis 
case,  it  will  be  necessary  to  prove  very  clearly,  liiat  the 
property  was  only  lent  by  tbe  father. and  that  it  was  ex- 
pi'cssly  and  notoriously  iniderstond  no-  to  bi-  a  gift  at  tlic 
.  time.  Tbe  peace  of  familirs  ami  tin- security  of  creditors, 
arc  greatly  concerned  in  the  law  being  tlui^  settled. — 
Every  transaction  in  luitnan  life  ought  to  be  (onsi<lered 
Under  its  ordinal y  circumst.inces — these  will  s.fricien'ly 
express  the  intention  of  the  partifs,  and  gcnerall_»  ni'ie 
nneqnitocallv  tiiaii  tbe  a|ipi)iiitt'd  s(deniiiities  of  the  i.>'n. 
This  property  was  given  in  the  n-iual  manner — that  is, 
sent  with  them  on  llieir  going  to  honse-keepiiig,  as  it  ia 
Called,  or  sent  to  tlieni  as  soon  as  the  parent  could  make 
the  necessary  arrangements  in  his  lai  in  or  family  for 
tliat  purpose. 

Under  this  charge,  there  was  a  verdict  and  judgment 
for  the  Defendant. 

SoTi. — Tide  Note  to  Farrel  v.  Perri),  ante  - 
15 


112  Haywood's  keports. 

Apr.  i794.p,jjs  dflj-m/icontiniianci' — that  lie  had  recovered  in  an  ac- 
^■^"*''^^  tioii  agaiiiMt  another  Dt'feridaiit,  wl»o  was  a  party  to  the 
same  ti-e.s|)Hss,  and  had  jiidi^merit  at^ainst  him  :  and  nei- 
thrr  Plaintiff  nor  Defendant  had  witnesses  now  ready  to 
prove  the  tresjiass,  or  that  it  was  the  same  trespass  fot' 
which  damages  had  before  been  recovered. 

Haywood  lor  the  Plaintiff — Tlie  plea  puis  darrein  con- 
tinuance, is  a  waiver  of  all  former  pleas,  aiid  amounts  to 
an  admission  of  the  faits  stated  in  the  declai-ation  :  and 
he  cited  3  Bl.  Com.  317.  who  cites  Cro.  El.  49.  and  he 
also  cited  a  case  lately  decided  at  Salisbury,  between  the 
adrainisirators  of  Hillary  Butts,  Plaintiffs,  and 

Defendant,  where  it  was  pleaded  since  the  last 
continuance,  that  the  Defendant  has  obtained  a  release 
from  the  administratrix,  who  was  a  married  woman  : 
whereupon  it  was  insisted  by  the  Plainiiff's  Counsel, 
(975  anil  so  ruled  by  the  Court,  that  this  plea  is  a  waiver  of 
all  former  ones,  and  an  admission  uf  the  truth  of  the  de- 
claration. 

Davie  e  contra — 'I'he  act  of  1777,  ch.  2  sec  34.  allows 
thr  Defendant  to  plead  as  many  several  matters  as  may 
b<-  necessary  for  his  defence,  so  that  he  be  not  admitted 
to  plead  and  demur  to  the  whole ;  when  therefore  any 
pleas  necessary  for  his  defence  are  put  in,  they  are  each 
to  be  presumed  to  be  material,  and  not  one  a  waiver  of 
the  ()tlier  which  happens  to  be  prior  to  it. 

Per  Curiam,  Judge  .Ashe  and  Judge  Macay — A.  pica 
puis  durrien  continuance,  is  a  wai\er  of  all  form'-r  pleas, 
and  an  admission  of  tin-  declaration  ;  and  the  Defendant 
not  being  ready  to  jnove  his  plea,  Plaintiff  had  a  verdict 
and  judgment  for  one  penny. 

Note. — Vidi-  McDaniel  v.  Tate,  in  a  note  to  Smith  v.  Potoel,  poi/i 
4S3.     1  Chitty's  Plead.  636. 

Carter's  Executors  r.  Rutland. 

-Negroes  sent  with  a  duighter  upon  her  marriage,  or  with  a  sonin-Iaw 
and  daujjhter,  is  pnina  fatne  i-vidence  of  a  gift;  and  if  the  prop  rty 
rem  tins  any  leiigtii  of  lime  with  tlicm,  very  strong  proof  will  be  re- 
quired to  show  thut  only  a  loan,  and  not  :i  gift,  was  intended. 

The  following  facts  were  stated  in  this  case  by  the  par- 
ties as  a  case  agreed,  and  submitted  to  a  jury  on  the  issue 
turn  detiuet,  under  the  direction  of  the  court  as  to  the  law. 

Fi>CL-  ^.ifie ".!  '  .  in  the  case  of  Lazarus  Carter,  Exe- 
cutor of  Isaac  Curler,  v.  /Shadrael^  Hulland. 


IIAYWOOU'S    REPORTS.  113 

Shadrach  Rutland  i\ni\  Partliena  Carter,  daughter  of  Apr.  1794. 
Isaac  Carter,  of  Hertl'ord  Cdimty,  were  iiiarried  tlie  12th  ~^^~''"*~' 
day  of  November,,  irrs.  About  llie  iniddl<'  of  the  year 
1776,  a  negro  woinaii,  JManji,  with  a  yoiuig  cliild,  Saul, 
was  seiif  by  Jlr.  Carter,  to  said  Shadrach  an<l  Parthena. 
— JV*an?i'5  issue  hhicc  in.  Bob,  Hastte.  Tibbie  asid  Lydia. 
Some  time  in  tlie  year  1781,  said  Shadrach  and  Parthena 
were  on  a  visit  at  Mr.  Carter's,  and  tliey  were  directed 
to  take  a  negro  boy,  Peter,  home  with  tlM-ni.  Again,  in 
the  year  irsa  or  1783.  said  Shadrach  and  Parthena  were 
oil  a  visit  at  Mr.  Carter's,  and  ihcy  svrrc  dii-fi-tcd  to  take 
a  negro  (jiil,  Maggy,  home  witli  them — Maggifs  issue 
is.  Homer,  Penny,  Violet  and  Willis. 

Mrs.  Parthena  liullund  i\wA  in  August,  17  88,  and  JJir. 
Isaac  Carter  dud  the  8lli  July,  1792. 

It  was  also  admitted  on  the  trial,  that  Isaac  Carte:)- 
had  bequ<alhed  these  negroes  Ity  his  last  will,  to  his 
graiidi  hildren  by  Parthena,  and  the  executor  had  made 
tlie  usual  demand,  and  that  the  Det'endaiit  was  in  po.iscs- 
sioii. 

Per  Curiam — Wlien  a  man  sends  jiroperty  with  Iiis 
daughter  ii|inn  her  marriage,  or  to  his  son-in-law  and 
daiigliter  any  short  time  alter  the  marriage,  it  is  to  be 
jire.'^umed  prima  facie,  that  liic  projicrty  is  given  abso-  /Qg.^ 
iiitely  in  advancement  of  his  daughter  ;  and  when  tlie' 
property  is  permitied  to  remain  in  the  possession  of  tiic 
son-in-law  lor  a  considerable  length  of  time,  as  in  this 
case,  it  will  be  nccciisary  to  prove  very  dearly,  that  tiic 
property  was  only  lent  tiy  the  father,  and  that  it  w^as  ex- 
pressly and  notoriously  nnderstood  no'  to  b'-  a  gift  at  the 
time.  The  peace  of  famijiis  ami  thiHecurity  of  creditors, 
are  greatly  concerned  in  tlio  law  being  tioi-  se'tled. — 
Eveiy  transaction  in  luiinao  life  ought  to  tie  (onsidered 
uiiiler  its  ordinary  circumstances — these  will  sitncicn'ly 
express  the  intention  of  the  jiarii^s,  and  generali_»  iii"ie 
uiiequi«ocall}  than  the  appointed  soleiiuiities  of  the  law. 
This  property  was  given  in  the  usual  manner — that  is, 
sent  with  them  on  llieir  going  to  lioiise-keepiiig,  as  if  is 
called,  or  sent  to  them  as  soon  as  tlie  parent  could  miike 
the  necessary  arrangements  in  his  farm  or  family  tor 
that  purpose. 

Under  this  Charge,  there  was  a  verdict  and  judgment 
for  the  Defendant. 

SoT«. — Vide  Note  to  Farrel  v.  Perrti,  ante  '2. 
15 


114  Haywood's  repokts. 

Sep  im.  MORGAN,  SEPTEMBER  TERM,  1794. 

Steele  v.  Antiionj'. 

A  Rrant  from  the  State  uilliDUt  the  seal  appenilant,  offered  in  evt 
denci-.  JiidgL- WiLiiAMS  thought  th.U  thi;  deed  was  destroyed  by 
tlie  seal's  being  turn  off.  But  Abue  Jutlpe,  was  clearly  of  opinion, 
that  vehcre  an  interest  once  passed  and  vested  in  the  grantee,  the 
destruction  of  the  deed  could  not  affect  the  interest  before  passed 
by  it. 

E jrrtment.  PlaintiiT  in  making  out  liis  title,  produced 
a  giant  fi'oni  tlie  State  without  the  seal  appendant, 
but  it  ha<l  been  registered  in  the  Register's  office.  It 
was  sitfhed  by  the  Goveiuor,  and  countersigned  by  the 
Seci'elary. 

It  was  objected  by  Avery  and  Henderson,  that  the  seal 
being  not  appendant,  the  grant  is  nullified, and  therefore 
it  cannot  be  product  in  evidence;  in  like  manner,  if 
the  se  il  of  a  bond  be  torn  ofT,  the  bond  cannot  be  read 
in  eviilcnre.  They  cited  Bull.  JVisi  Prius  1'2.   1 1  Rep.  28. 

Haywood  e  omtra — When  the  seal  of  a  bond  is  torn 
off,  the  presumption  is,  that  it  was  done  in  order  to  ran 
eel  tlie  bond,  and  the  existence  of  the  debt  depends  upon 
that  of  the  bond  ;  when  the  bond  becomes  extinct  in  point 
of  I  >i\v,  the  debt  is  also  extinct:  but  in  cases  where  an  in- 
terest passes  and  vests  in  the  grantee  by  tlie  operation  of 
'  the  ileed, though  (hat  deed  be  afterwards  destroyed, tiiat  will  :l 
not  revest  the  interest  thin*  passed.  It  wtnild  be  of  tlie  most  ' 
alurining  consequence,  it' in  every  case  where  a  di'cd  of  bar- 
gain &sale  was  ilestioyed  by  tearing  off  the  seal,  the  bar- 
gainee or  grantee  sliKuld  lose  his  lands.  He  cited  L. 
Evid.  l»r,  108.  Bull.  JVm  IViiis  267.  268.  Besides,  if 
this  pajier  cannot  be  read  as  the  grant  irself,  it  surtly 
may  be  read  as  a  ropy  or  paper  containing  the  woi  d-i  in 
which  the  real  deed  was  conceived.  The  rule  is,  when 
(99)  a  deed  is  lost,  a  registered  cojiy,  or  a  sworn  copy,  may 
be- given  in  evidence  j  or  for  want  of  such  an  abstract, 
the  contents  may  be  given  in  evidence.  In  taking  these 
copies  however,  ilicie  in-iy  be  a  inisake  and  variance 
from  the  original,  but  here  there  can  be  no  such  mistake, 
and  therefore  this  paper  is  beit-r  than  a  registered  copy, 
as  being  less  liable  to  deceive  us,  and  therefore  on  tliis 
ground  it  cniglit  to  be  read. 

Judge  H'iUiams  cited  2  Bl.  Com.  295.  and  thought  Ihar 
in  every  case  where  the  seal  was  lorn  off,  t'le  deed  was 
destroyed,  and  ini  lined  to  be  of  ojiinioii  that  the  paper 
Oifered  could  not  be  read  as  the  grant  j  (lut  Judge  ^«/(e  was 


Haywood's  reports,  115 

clearly  of  the  conti-ai'v  opinion,  lie  said,  vvlipre  an  inter-  Sep,  1794. 

est  otice  passed  and  vested  in  the  ajrantee,    the   destrnc-  ^>^">^>»i<' 

tion  of  llie  deed  afiecwards  could  not  affect    the   interest 

before  passed  by  it  ;  and  that  this  was  nit  like   the  case 

of  a  bond,  where  the  dt-bt  must  he  presuineil   to   be   ex-- 

tinct  where  the  instrument  which  evidenced  it,  ap|ieared 

to  want  one  of  its  most  I'ssential  constituents:   (or  when 

the  seal    is  torn    from    a    bond,  the  conclusiuti  of  law  is, 

that  the  bonfl  was  meant  thereby  to  lie  cancelled.     They 

agreed  to  reserve  it  as  a  point  for  further  discussion,  but 

the  jury  found  for  the  Defendant  upon  other  grounila. 

State  V.  Magniss. 

Uacoffnizances  bind  lands  from  the  time  at  which  they  are  entered  in. 
to,  but  a_^.  fct.  only  from  its  teste. 

In  this  case  the  Defendant,  who  had  been  bail  for  his 
son,  ai)plied  to  the  court  u[niii  an  iiffitlsiv  it  filed,  to  be  re- 
lieved from  the  forfeiture  of  his  recogoizanre,  upon  which 
judgniiMit  final  had  been  entered  under  the  act  of  1788, 
ch.  3-.  sec.  2.  and  to  be  permitted  to  enter  into  new  re- 
cognizance to  attentl  as  a  witness  at  the  next  term  :  but 
it  was  sail!  he  was  about  to  move  out  of  the  State. — 
Whereupon  the  Attorney-General  opposed  this  a|)|dica- 
cation.  He  said  his  former  recogniziince  ought  not  to 
be  remitted,  for  in  that  case  tlic  State  would  have  no 
hold  at  all  upon  him  ;  for  though  he  now  had  lands  he 
might  sell  them  and  move  away,  and  they  were  not  lia- 
ble to  the  recognizance  but  onlj  from  the  time  t\n\fi.fa. 
issued  againt  them  :  and  f(»r  this  he  cited  the  case  of 
Bell  V.  Hill,  determined  at  Halifax  Sui)crior  Court.  He 
further  said,  it  t\u-Ji..fa.  conlil  have  no  retrospect  in  a 
case  where  it  issued  upon  a  judgment,  it  could  have  none 
■where  it  issued  upon  a  I'ecogniz.mce  forfeited  ;  and  that 
a  recogiiiz.iiice  had  no  greater  force  (o  bind  the  land 
than  a  judgment  iiad,  for  that  each  were  mentioned  iit 
the  same  manner  in  the  statute  13lh  Edw.  I.ch.  18  which 
introduced  tlie  ele;^it.  , 

Judge  Afihe  inaile  no  observations.  t'""^ 

Judge  WilliamH — The  decision  at  Halifax  was  a  pro- 
per one.  In  Eogiainl,  where  the  lands  are  bound  from 
the  judgment,  there  judgments  are  entered  in  the  King's 
Be.tich  or  Common  Fleas  only  ;  thither  all  persons  may 
resort  with  a  certainty  of  finding  whether  or  not  such  a 
judgment  as  would  affect  lands;,  had   been  entered  up  : 


•116  HAVWOOU'S   llEPOUTS.  j 

Sep.  1794.  ij„t  in  tlii.'?  country,  judgnienta  are  not  capable  ol  creatiiig 
*'^~'^"^^  siirli  iiotnripty — no  man  knows   where   to   siarcli   for   a 
iiulgment  tluit  he.  siisperls  may  be  probably    taken — the 
Superior  Courts — the  County    Courts — and  Justices  of 
the  Peace  out  ol  Court — may    pass  jiidgmenls  to   affect 
land,  and  no  one  knows  where  to  seanh  for  them.     It  is 
very  |)roper  therefore  in  this  country,  that  lands  should     , 
be  bound  in  case  of  judgments,  but   from  tlic  time  of  the     ] 
teste  of  the  fi.  fa.  only  ;  but  recogjiizances   remain   as 
they  were,  because  tlie  liind  is  made  liable  expressly  by 
the  words  of  the   recognizance — "to    be  levied   of  my 
^oods  and   chattels,  lands  and   tenements,  upon  condi- 
tion," &c.     Now,  when  this  condition    is   not   complied 
with,  it  is  the  same  thing  as  if  he  had   expressly   bound 
his  land  to  |)ay  that  sum  absolutely  and  uucouditionally    , 
on  the  day  of  tlie  recognizance  niadi\ 
Judge  ^she  assented. 

Note Vide   Sell  \.  Hilly  and  note  thereto,   ante  72.     Builonv. 

M-urplie<j,  N.  C.  Term  Hep.  259. 

State  V.  Brown. 

A  horse  stolen  in  one  State  or  Tefillory  and  carried  into  another,  will 
not  make  it  a  felony  in  the  latter  State.  A  speciiil  verdict  which 
states  the  feloninus  taking  in  one  State,  and  the  taking  continued  in- 
to another,  cannot  be  supported  as  a  felonious  taking  in  the  latter. 

Indictment  for  stealing  a  horse  in  the  county  of  Burke. 
The  jury  found  specially  (liat  the  felony  was  committed 
in  the  Territory  South  of  the  Ohio,  and  that  the  trespass 
was  continued  into  this  State,  where  he  was  taken.  The 
Attorney-General  cited  Hale'sPl.  Cr. 507, 508. -Auti Haw, 
P.  C.  9«.  and  he  issisted,  tliat  as  the  asportation  into  an- 
other county,  is  in  law  a  new  taking  in  this  latter  coun- 
ty; so  a  taking  out  of  this  State,  and  an  asportation  into 
it,  is  a  new  taking  here — and  so  the  prisoner  is  guilty  of 
felony  here  :  lie  cited  a  case  which  he  had  from  the  in- 
formation of  Jtfr.  .flvcrj^,  who  was  now  present  and  af- 
firmed it,  that  while  he  was  Attorney-General,  a  man 
< '  was  tried  at  Hillsborough,  who  had  stolen  a  horse  in  tbo' 

county  of  Mecklenburg,  in  Virginia,  and  brought  it  into 
this  State ;  and  this  appearing  upon  evidence,  a  doubt' 
was  (onceived,  whether  he  was  guilty  of  felony  against 
the  law  of  this  State  ;  but  H.  H.  P.  C.  being  cited  and 
relied  upon,  the  court  upon  deliberation  were  of  opin- 
ion, it  was  a  felony  punisbablc  by  the  laws  of  this  State,] 


HAYWOOD  S    REPORTS. 


117 


and  the  man  washaoirrd  :  but  jjer  Jnde;p.  ^ she,  if  tl"is   ep-l"94- 
man    were    tried    and    condcnmed    here,    or    tried    and  *"*^^ 
arquittcd  here,  wonld  the  sentenrc  of  this  court  lie  plead-    (lOI 
able  in  bar  to  an  indictment  preferred  against  him  in  the 
Territory  Snutli  of  the  Ohio  ?   1  think  it  would  not ;  be- 
cause the  oflVnce  aijainst  the  laws  of  thi*  Slate,  and  the 
oflTcnce  against  the  Ia«.s  of  that   conntry,   are   distinct; 
and  satisfaction  made  for  tlie  offence  committed    against 
this  State,  is  no  satisfaction   for  the  offence   committed 
against  the  laws  tiiere.  The  consequences  then  of  tr^'ing 
this  man  iiere  and  condemning  liim,   will   be,    that   if  a 
man  steals  a  horse  in  one  |)art  of  the  contiuent,  andgoes 
Willi  him  to  anotlier,  through  several   Stales,  tiie  ciil|)rit 
acccnding  to  the  several  laws  of  each  State,  being  guilty 
of  a  taking  in  each,  may  be  cropped  in  one,  liranded  and 
whipped  in  another,   im|irisoned   in   a  third,  and  hanged 
in  a  fuurlii ;  £c  all  for  one  and  tiie  same  offence.    This  is 
against  natural  justice,  and  therefore  I  cannot  believe  it 
to  be  law — when  a  man  steals  in  this  State,  and  carries 
the  thing  stnlen  into  anotlLer  cnunty,  he  is   guilty  of  the 
the  same  offence,  and  punishable  in  the  same  di'gree  and 
by  the  same  law  in    the  latter  as   in  ihe   fMrmcr  county, 
and  is  punislnible  but  once  ;  if  convicted   or   acquitted    in 
tlic  latter  coiiniy,  he  may  plead  autre  faits  convict  or  ac- 
quit,  iif  the  same   felony    before,  when    indicted    in    the 
former;  which  shews  that  Ihe  law  considers   tlie   felony 
that  was  committed  in  tlie  first,   otherwise   it  could   not 
be  pleaded  as  the  same  in  tiie  case   before   mentioned. — 
Now  if  the  felony  in  this  State,  is  the  same    felony    that 
was  committed  in  the  Territory  Soutii  of  the  Ohio,  then 
it  is  a  felony  against  the  laws  of  the  Territory,  and  pun- 
ishable there  by  pillory,  branding  and  wiiipping,  and  not 
by  death.     It  would  be  strange  then  to  say,  he  siiould  be 
punished  here  with  death,  foi-  an  offence  against  the  laws 
'  of  another  Stale,  which   punishes  only   with   infamy. — 
This  is  my  opinion  upon  the  reason  of  the  case  as  it  now 
occurs  to  me,  and  I  am  confirmed  in  it  by   looking   into 
.    Hawkins  Pleas  of  the   Crown,   where    alter  stating  the 
same  doctrine  as  it  is  stated  in  //.  H.  P.   C,    relative    to 
the  asportation  being  a  new  taking,  he  says,  but  if  ii    pi- 
racy be  committed  on  the  sea,  and  the  goods  be  brought 
to  land,  the  pirate  cannot  be  indicted  as  a  I'l'lon,  because 
the  original  felony  was  not  within  the  cognizance  of  the 
common  law^— and  why?  Becaus»»  not  committed  within 
the  extent  of  those  limits  that   are  subject  to  the  law   of 


118  UAYWOOd's    IIEPOIITS. 

Sep.  1794  England.  So  here  this  oReiire  lias  not  been  rommitfpil 
^■^'^''"^^  within  the  territory  subject  t<i  tli"  laws  of  tliis  St-jte,  ami 
therefore  the  prisoner  ix  not  liable  to  be  punished  by 
these  laws:  I  think  we  cannut  pass  jmlsment  n|ion  him, 
(102)  however  worthy  he  may  be  vi  dcatii.  I  eaimot  i-emember 
the  case  cited  by  Mr.  Avery,  and  I  tiiink  he  must  be  mis- 
taken. Also  for  anoiher  reason  we  cannot  pass  judg- 
ment against  the  prisom-r,  this  special  verdict  states  at 
first  that  the  felony  was  originally  cummiltediii  theTer- 
ritory  South  of  the  Ohio  ;  then  ih.it  the  taking  was  con- 
tinued into  tlii><  State  ;  litit  it  does  not  state  tlic  felonious 
taking  to  be  continued  into  thi-i  St:-i'e,  and  therefore  wc 
cannot  say  that  the  taking  spoken  of  by  the  jury  was  a 
felonious  taking,  and  without  a  felonious  taking  the  pri- 
soner cannot  be  guilty  of  the  crime  laid  in  the  indict- 
ment. 

Judge  Williams — I  do  not  remember  the  case  cited  by 
Mr.  Avery,  if  there  was  such  a  rase  it  was  so  adjudged 
on  account  of  some  peculiar  circumstances  now  forgot- 
ten :  but  at  present  I  concur  in  omnibus  with  Judge 
Ashe. 

So  there  was  judgment  for  the  prisoner,  and  he  was 
discharged. 

State  V.  Allen  Twitty. 

If  an  out-house  be  so  near  tlie  Jwe'liiiK'-l'ouse,  that  it  is  used  with  t)ie 
dwelling  house,  as  appurtenant  to  it,  biiiglary  m:iy  be  commilted 
in  it.  Ill  this  case,  tlit  out-houae  was  seventeen  and  a  half  feet 
from  the  dwelling-house. 

Indictment  for  a  burglary  in  the  mansion-house  of  the 
prosicutor,  one  Ilaslip,  and  taking  from  thence  a  cask 
containing  twenty  gallons  of  biandy,  &c. 

Upon  evidence  it  appeared,  that  Twitty  broke  open,  in 
the  night  time,  a  Intle  out-lionse,  abunt  seventeen  and  a 
half  feet  from  the  dwelling  house,  and  took  out  the  bran- 
dy, &c.  and  it  was  insisted  on  the  part  of  the  pjisoner, 
that  this  was  not  burglary.  The  indictment  lay.s  it  to 
be  a  mansion-house,  but  it  has  been  determined,  that 
where  the  jury  find  the  hotise  to  be  separated  from  the 
dwelling-house  only  eight  feet,  and  that  the  breaking  and 
entering  was  in  that  bouse,  it  is  not  burglary  ;  and  cited 
an  Huthorify  from  Leach,  who  has  a  case  to  that  <'flect. 

E  coiitrn,  it  was  urged,  that  if  the  out-hoosf  be  so  near 
th«  dweiliiig-liuuse,   that   it  is  uaed  together  with  tlie'^ 


I 


Haywood's  uiiPouTS.  119 

dwelling-house  as  appni  tenant  tn  il,  tliat  it  is  burglary  Sep.  17'94. 
to  break  it  in  tlie  iiiglit  time  witli  intent  t()  nimuiit  a  fe- '■^'"'^"^^ 
loiiy  ;  and  it  is  not  necessary  for  tliis  purpose  that  it 
should  be  inclosed  wiili  the  dnelliiig-h"nse  in  flic  same 
indosure — if  it  stands  within  the  cnr'ilageit  is  sullicient 
— the  meaning  of  which  term  in  law  is,  a  piece  of  gioimd 
cither  inclosed  or  not,  that  is  commonly  nsed  with  the 
dwelling-house.  Jacob,  verb.  Curtilage.  6  Itep.  G4.  And 
to  jirove  tiiat  if  the  house  stands  within  the  curtilage,  it 
is  the  subject  of  burglary,  he  cited  Bl.  Com.  225.  1  //. 
H  p.  C.  558,  55y.  II.  P.  C.  104.  As  to  the  case  cited 
from  Leach,  he  said  it  was  so  adjudged  on  account  of  the  (^03) 
special  finding.  It  must  of  necessity  he  stated  in  every 
indictment  of  burglary,  tiiat  it  was  committed  in  a  man- 
sion house  ;  and  oul-Iiouses  included  witliiit  the  curti- 
lage, according  to  the  definition  of  that  word  just  given, 
may  be  consith red  by  tlie  jiiiy  upon  e>ideiice  given  to 
them,  to  be  parts  and  parcels  of  he  mansion-house ;  and 
may  conclude  aiKl  say  upon  such  evidence,  that  the  offence 
was  committed  within  liie  mansion-house  as  laid  in  the 
indictment — like  as  in  trover,  when  it  appears  in  evi- 
dence, the  Defendant  was  possessed  of  thf  goods  declnr- 
ed  lor,  and  th.it  there  was  a  demand  by  tlie  I'laintiff,  and 
a  refusal  on  the  part  of  the  Di-i'endant,  the  jury  are  war- 
ranied  in  concluding  and  finding  there  was  a  conversion  ; 
but  in  the  one  case,  if  tliey  do  not  expressly  find  it  was  a 
dwelling-house,  but  an  init-house  only  ;  and  in  the  othei', 
if  they  do  tlot  expn-ssiy  find  a  conversion,  but  ])Osses- 
sion,  (iemand  and  refusal  only — the  Court  cannot  con- 
clude in  the  one  case,  that  it  whs  a  d wtlling-linu^e  :  nor 
in  the  other,  that  there  was  a  conversi.^ii — ttie  Court  are 
not  em|(0vvered  to  draw  any  conclusion  from  fads  spe- 
cially proved  or  stated  in  a  special  \erdict — that  solely 
belongs  to  the  pro\iiice  of  the  jui-y.  Therefore  the  case 
cited  from  Leach,  where  the  juiy  find  i:  to  he  an  out- 
house, separated  from  the  (Iwelling-housi-,  and  donutex- 
ju'essly  Say,  as  they  ought,  that  it  was  a  mansio,i-|iouse, 
the  Court  must  take  it,  as  the  jury  ha\e  st.ited  it.  to  be 
an  out-house  only,  and  not  a  mansion-lionse  as  stated  iti 
the  indictment 5  and  of  course  they  cannot  say  it  was 
burglary,for  that  must  be  committed  in  a  mansion  house. 
[This  is  the  reas(m  why  that  case  w.ts  so  adjudged,  and 
not  because  to  steal  out  of  such  an  hmise  is  not  burgla- 
jry  ;  and  so  that  case  is  not  at  all  re|)ognant  to  what  is 
laid  down  in  tho  authors  I  have  ciicd.  hnt  is  perfectly 


I2tt  Haywood's  reports. 

Sep.  1794.  (-onsislpnt  with  what  they  have  stated — and  of  this  opt- 
■^"^"^''"^^ niim  Wire  the  Cnurt  ;  and  both  Judge  JsAc  and  Judge 
Williams  charged  the  jury  arcordiugly  ;  but  yet  they 
found  him  not  guilty  of  the  burglary,  but  guilty  of  tlie 
lai'ceny  only — and  he  was  burnt  in  the  hand  and  dis- 
charged. 

TioTi;.— Slate  V.  TVibon,  post  242.     State  \.  Langford,   1  Dev.  Rep 
253. 

State  V.  Webb. 

Depositions  taken  in  the  absence   of  a  criminal,   shall  not  be  rea.' 

a,i;ainst  him. 

Pleasant  Webb  was  indirt^d   for  liorse-stealing,   and 
upon   the   trial    the  Attorney -General  oflTered    to  gi\c  in 
evidence  the  deposition  of  one  Young,   t»  whom  he  had 
sold  the  hoise  in  South-Carolina,  but  a  very  short  time 
alter  the  horse  wan  stolrn  ;  and  riled  in  suppoit  of  tl>is 
attempt,    2    H.  H.  P.  C.  284.     H.  P.  C.  429.     Bull.  25C. 
La.  Evid.  140,  142.     5  Term  Rep.  713. 
(104)       But  per  citriaiii,  Judge  .4s/te  and  J  udge  WUliams — These 
authorities  do  not  say  that  depositions  taken    in  the  ab- 
sence of  the    prisoner  shall  be  read,  and  our  act  of' As- 
sembly 1715,  ch.  16,  clearly  implies  the  depositions  to  be 
read,  must  be  taken  in  his  presence  :  it  is  a  rule  of  tiic  i 
common  law,  founded  on  natural  Jusiice,  that   no   man 
shall  be  prejudiced  by  evidenci-  which  lie  had  not  tl>e  li- 
berty ro  cross  examine;  and  th'iugli  it   be   insisted  that 
the  act  intended  to  make  an  exception   in  this   instance,  ^ 
to  the  ruli-  of  the  common  law.   yet  the  act  has  not  ex-  * 
pressly  said  so,  and  we  will  not,  hv  imjilication,  derogate  i 
from  tiie  salutary  rule  esiablished  by  ti>e  cu:nmon  law.  j 
So  the  deposition  was  rejected. 

Note, — Vide  Philips  on  Evidence,  299,  and  see  whether  the  Eng 
lish   pritctice   upon  ihis  subject  is  founded  upon  principles  tliat  oujjlit' 
to  be  adopted  in  this  country. 


SALISBURY,  SEPTEMBER  TERM,  1794. 
Saaiuel  Bailey's  Adm'rs.  r.  Robt.  Cochran's  Adin'r. 

Former  administrator'i  removed,  and  another  uppointt-d,  but  noi  made 
a  party  to  this  suit.  Tlir  litter  administrator  will  not  be  allow,  d  lu] 
plead  ':ny  tijing  to  tins  suit  ;  and  the  former  administrators  c  .n- 
nut  plead  the  repeal  of  their  lettt- rs,  :.fter  tlie  first  term  .sincr-  tht-iv' 
repol.  An  account  Si  ttltd  and  signed  by  one  administrator  is  buid-;, 
iD){  upon  all,  and  vi'M  bear  iii'e.cst  from  ilic  time  it  wms  sij^ned.       ^ 

In  this  ia<ie  it  was  mot'd  on  the  part  of  the   Dt'('end''i^ 
ant,  that  ho  might  be  at  liuerty  to  pi«ad  puis  darrein  con 


tinuance;  that  a  jiidsmi'iit  bail  been  obtaiiicii  at  tlii;  last  Sep- IT'S'*- 
tei'in  of  tliis  Cmiit  asjainst  the  adininisti-iitors  of  Cock-  '>^~*''*^ 
ran,  for  a  sum  wliicli  was  tn<ii'C  than  suflicient  to  exiiaust 
all  (be  assets.  It  was  objected  on  (be  part  of  tlic  Piaiii- 
tiff.  tbat  tbis  suit  was  brouglit  against  two  ptM-soiis,  who 
at  tbat  time  were  ibe  administrators,  but  who  lotic^  since 
liad  been  removed  by  Ibe  County  Court  of  Cumberland, 
and  Ibe  present  adininistralor  appointed  in  tbeir  stead, 
but  tbat  tbis  sdit  was  never  against  the  latter  adminis- 
trator; and  tbat  tliis  matter  wbicb  is  now  sougiit  to  be 
}ileade<l,  bad  never  been  pleaded  by  tbe  former  adminis- 
trators; and  tbat  as  tbe  present  administrator  was  not 
any  party  to  tbis  suit,  be  cinild  not  |)lea(l  tbe  plea  moved 
for.  Et  per  curium— This  latter  administrator  cannot 
jdead  any  tbing  to  I  lie  suit :  and  as  to  tbe  foriiier  admin- 
istrators, tbey  cannot  now  [ilead  tlie  repeal  of  tbeir  let- 
ters of  administration,  tbey  sbould  have  done  so  at  the. 
first  term  after  the  rejieai  ;  but  several  terms  of  tliis 
Court  have  intervened  sincu  tlie  repeal,  and  they  now 
come  too  late. 

Tbe  Plaintilf  prodticed  an  account  stated  and  signed 
by  one  of  the  furmer  administrators,  and  insisted  that  by 
iict  1786,  ck.  4,  sec.  S,  he  was  entitled  to  interest  on  tbe 
balance  of  the  account  ivum  tbe  time  of  its  being  signed; 
and  to  Ibis,  ti[)on  argnmcnt,  liie  Court  assented,  saying 
the  act  id' one  shall  bind  both.  And  tbe  Plaintiff  had  a 
verdict  accordingly. 

NoTB. — Tlie  pica  of  the  repeal  of  the  letters  v/ould  come  as  a  pirii 
[mis  (iarrdn  coniiiiKance,  anil  therefore  not  allowahle,  except  plead 
at   the  proper  lime.     See    Chit.    Plead.    636.      Whether  the    act  of 

ine  administrator  is  bUuhng  upon  the   others,  see   Mangum's  adin'rs. 

'.  Sims,   1  Car.  La-m  Rep.  547. — Gordon  v.  Finlay,  3  Haviks,  239. — 

Toller  on  Ex'rs.  408. 

James  Murphy  v.  Alexander  Work.  (I05'j 

The  Defendant  on  bis  part  gCTered  in  evidence  the  de- 
position of  a  Mrs.  Work,  which  a[)peared  not  to  have 
been  signed  by  her — objected,  tbat  a  de|)ositioti  thus  cir- 
cumstanced cannot  be  read,  because  if  tbe  party  bad 
sworn  falsely,  she  conld  not  be  indicted  for  it;  or  if  in- 
|dicted,  she  could  not  be  convicted,  tbe  deposition  not  be- 
ing signed  by  her  could  not  be  given  in  evidence  against 
her:  and  to  sn[»port  tiiis  position,  was  cited  Bull.  JVisi 
Prius  239.  But  jjer  Judge  ffiJiiains,  Judge  .fls/te  assenting 
— in  case  of  nil  indictment  for  perjury  for  a  false  oath  in  ma* 
16 

■ 


122  llAV wood's    IJEl'OKTS. 

Sep.  1794.  Jciiij^  a  (li'pDsitirm,  it  is  most  proper  tliat  the  party's  name 
'•^^""'"'^^  should  l»p  signed,  in  order  that  she  may  be  more  easily 
identified  by  proof  of  her  hand-\vritinj°f — yet  if  she  can  be 
olherwisp  proved  to  liave  swoi'n  to  the  deposition,  she 
may  be  ronvicted ;  tliercforc  this  deposition  should  be 
received,  though  it  be  not  signed  by  the  deponent.  Vide 
1  P.  Wil.  414.  2  Eq.  C.  M.  417,  contra,  and  the  depo- 
sition w-as  read  accordingly. 

Note. — Vide  Slule  v.  Ransome,  ante  1,  in  which  it  was  held  th.it  f» 
person  might  be  indlctefl  upon  an  affidavit  not  signed.  See  the  next 
c;ase. 

Rutherford  v.  Nelson. 

H  is  usual  to  read  depositions,  where  it  appe^trs  tl)at  they  have  been 
read  in  the  Court  below,  unless  it  can  be  shown  th.'it  there  is  an  ir- 
rog-ularity  in  them  ;  and  the  want  of  deponent's  signature  is  not  suf- 
ficient to  reject  them. 

Tlie  Defendant  offered  to  read  tlic  deposition  of  one 
Fisliburne,  which  had  been  before  read  in  the  County 
Coiiit  upfHi  the  trial  of  this  cause  there  ;  but  Fishbunif 
had  not  signed  the  deposition  :  it  was  op|)osed  by  the 
Counsel  for  the  Plaintiff  as  beitig  irregular — he  said  be 
had  understood  it  had  been  usual  to  read  depositions  in 
the  Superior  Court,  upon  the  mere  circumstance  of  its 
appearing  the  same  had  been  read  in  tlie  Court  beltnv  ; 
but  lii*  had  also  understood  tliat  this  rule  was  not  an  uni- 
versal one,  and  that  such  ilepositiofis  had  most  generally 
been  read  in  the  Superior  Court  by  consent  of  jjai  ties, 
and  it  certainly  could  not  be  universally  proper,  for  it 
migiit  be  tliat  the  very  cause  of  the  appeal  was  the  im- 
proper admission  of  depositions  in  ilie  Court  below — 
here  tiiere  was  an  irregularity,  the  deponent  not  having 
signed  his  name;  wliicli  he  took  to  be  necessary,  inas 
much  as  without  it  lie  could  not  be  well  prosectited  foi 
perjury,  in  case  of  falsity.  But  per  curiam,  Judge  .3si 
and  Judge  Williams,  it  has  been  usual  to  read  deposi 
tions  where  it  appears  they  have  been  read  in  the  Cour 
below  ;  though  perhaps  this  rule  might  not  be  a  propc|i^? 
one,  in  case  the  party  opposing  the  reailing  could  shew 
an  irre|:ularity  to  the  Court  here.  But  he  does  notshesv 
it  in  tlie  present  in.stance — he  only  alleges  the  deposi' 
tiun  was  not  signed  by  the  deponent.  But  wc  have  alo 
ready  decided  it  this  term,  that  the  want  of  the  depg^ 
(lOS)  nent's  signature,  is  not  sufficient  to  prevent  the  readiii|; 
his  deposition,  if  it  be  certified  by  the  Justice  or  Cum* 


UAYWOOD's    REl'ORTS.  123 

luissioiier  to  have  been  sworn  to  -.  for  we  must  give  crc- ^*P- '^^4* 
(lit  to  this  ceitifuatc,  so  far  as  to  believe  tliat  tiio  party  ^-'"^•''^^ 
was  sworn.     So  Hie  ilejiositioii  was  read. 

Note. — Vide  the  preceding  case  o{  Mui-pUy  v.  }!'orl.. 

Reynolds  v.  Fiinn. 

I'he  o.ct  of  1777,  Hev.  ch.  114,  voiding  titles,  &c.   means  void  as  to 

the  state  which  proceeds  to  avoid  by  scire  fucins. 

Ejectment.  The  Plaintiff  produced  a  slate  j^rant  for 
the  lands  in  controversy,  and  rested  his  cause  upon  it. 
The  Defendant  alleged  and  ofteretl  to  prove,  that  one 
JIurpfiij  had  entered  this  land  in  the  Entry-taker's  office 
— that  it  had  been  solil  as  Jlurphy^s  property  by  execu- 
tion, and  under  that  sale  came  to  the  IJefendant — that 
afterwards  Beynolds  tlie  Plaintiff,  havitig  a  knowledge  of 
these  circumstances,  pi-octired  the  entry  to  l)e  transfer- 
red, as  it  is  called,  in  his  name — that  is,  to  have  the  name 
of  flic  original  entei'er  erased,  and  his  own  inserted  in  its 
place.  Ho  iliil  this  with  intent  to  defeat  the  interest  of 
the  purchaser,  and  then  secretly  obtained  his  state  grant. 

Judge  Williams — I  know  of  no  law  by  which  lands 
only  entered,  and  not  appropi-iated  by  the  execution  of 
a  grant,  can  be  sold.  The  enterer  has  no  title  or  pro- 
perty till  his  grant  is  completed. 

Coutisel  for  the  Defendant — Whatever  tlie  party  liim- 
sclf  may  sell  and  diHjxise  of.  the  Sheriff  may  sell  and  dis- 
pose of  for  him  by  execution  to  satisfy  his  debts,  and  by 
act  1779,  c/i.  4,  s.  4,  it  is  enacted,  "  That  in  citse  of  the 
death  of  any  person,  w  lio  heretofore  has  made  an  entry 
of  land,  or  who  heical'ter  shall  make  an  entry,  pending 
the  same,  cir  before  the  making  out  the  grant,  his  or  their 
heirs  or  assigns  shall  have  a  fee-simple  in  the  pi'emises, 
although  the  grant  shall  be  made  in  the  name  of  the  de- 
cedent." By  tlie  word  assigns  here  used,  it  is  plainly 
implied  he  may  sell  and  dispose  of  (he  interest  he  has  ac- 
quired by  the  entry,  and  that  such  sale  and  disposition 
shall  vest  a  fee  in  the  pnichaser,  ujion  the  event  of  tho 
grant  issuing  after  the  deatli  of  the  enlercr  in  his  name  ; 
and  if  it  be  true  that  the  Sheriff  may  sell  by  the  autho- 
rity of  an  execution,  all  such  property,  or  subjects  of 
property,  as  the  debtor  himself  can  sell,  this  clause  au- 
thorises the  sale  of  lands  which  a  debtor  has  entered  ; 
and  then  it  ftdlows  tliat  the  law  slmuld  pi-otect  such  sale, 
with  as  much  ease,  atul  by  the  same  rules  that  it  protects 
sales  of  otiier  subjects  of  property. 


124  HAYWOOD's   BEP0BT6. 

Sep.  1794.  But  per  curiam,  3 iii]t^c  ,9 she  and  Judge  Williams-^ 
^•^'''■^^  Here  tlie  Plainliff  has  a  state  giarif,  and  il  would  be  of 
(107)  the  most  dangerous  ciMisequetices  to  void  it  by  parol  tes- 
timony. It  is  true,  that  the  ait  of  1777,  ch.  1,  sec.  9, 
says,  that  every  riglit,  title,  chiim,  &r.  obtained  in  fraud, 
elusion  or  evasion  of  the  premises  of  that  act,  shall  be 
deemed  void — but  the  tneaning  is.  it  shall  be  void  as  to 
'  the  State,  who  may  proceed  to  void  it  hy  sci.fa.  and  ha- 
ving a  judgment  founded  on  that  on  rerord  expressly  a- 
gainst  it — not  that  it  shall  be  voided,  upon  evidence  in 
an  ejectment  by  an  individsuil  citiztMi.  It  is  true  also 
that  the  act  further  directs,  that  a  party  preferring  a 
subsequent  claim,  siiall  give  bond  to  prosecute  the  claim 
with  eSect,  &r.  as  has  been  stated  at  the  bar  ;  but  as  this 
case  is  offirrd  to  bo  proven,  that  would  l)e  an  art  to  be 
done  by  the  Defendant,  when  he  found  that  Reynolds  had 
procured  the  entry  to  be  transfi  rred  in  his  name.  The 
DiTendant  sliould  then  iiave  gone  to  tiie  offi<"e,  and  cans- 
cd  a  caveat  to  be  entered,  anil  sitould  liave  given  the 
bond  that  the  act  directs.  It  has  been  argued  that  the 
Defendant  was  a  pui  chaser,  and  that  the  Plaintiff  having 
this  grant  wiih  an  intention  to  defeat  tiiat  purchase,  it 
was  void  under  the  act  against  conveyances  to  defraud 
purchasers  ;  but  that  act  was  intended  to  void  tiio  deeds 
of  private  individuals  made  for  such  purposes,  not- deeds 
granted  by  the  State.  Tlie  law  will  not  suppose  the 
State  concerned  witii  one  individual  to  defraud  another  ; 
and  indeed  it  is  much  to  be  doubted,  whctlier  an  entry 
can  be  sold  by  execution.  And  if  it  cannot,  tiien  the  De- 
fendant is  not  a  purcliaser  within  tlie  meaning  of  that 
act.  There  are  many  things  a  man  himself  may  sell, 
which  cannot  be  sold  by  execution — if  the  Defendant 
hath  a  judgment  for  a  sum  of  money,  the  Sheriff  cannot 
sell  it  upon  a  Ji.  fa.  and  besides  the  act  cited  does  not 
authorise  a  sale  by  the  enterer,  it  directs  when  the  grant 
from  the  State  comes  out  in  the  name  of  the  decedent, 
the  assign  shall  have  a  fee-simple  in  it — it  may  mean  an 
ansignce  in  law  as  a  devisee,  &c.  The  act  does  not  say 
that  in  all  cases  the  enterer  may  sell,  and  that  his  sale 
shall  be  good.  Et  per  TFiUiams  to  the  jury — This  is  so| 
clear  a  case  that  the  jury  need  not  go  a  foot  from  the' 
bar.  Yet  they  did  retire,  and  after  some  time,  found  ac-- 
cording  to  his  direction,  for  the  PlaintilT— <?uerc  deluK.-. 

JJoTB. — Vide   accordingly   Sears  v.  Parker,  post   V26.~  Dickey  ijfr, 
ffotdenpile,  pott  oSS^-Cupplee,  guardian  of  Mien  v.  —  past  4jfi*»i 


Haywood's  reports.  J  25 

f'oremau  v.  Tyson,  post  495  —Tyrrell^.  Moimey,  1  M^rpli  401 — Tnle  Sep.  1794. 
V    Grtfenlee,  2  H..-wks,  251.     B.it  when  the  lands  aie  noi    n  laci  vacant  v^^-v^p/ 
and  unapproprtateJ,   a  state   grant  of  such  lands   is   absolutely  void, 
and  thai  fact  may  bt-  shown  in  i  vidence  on  a  trial  it  lnw  in  ejt-clmcnt. 
University  v    Sa-wyer.  .'  ll„y.  98. — Slrother  v.   Corthey,  1  Murph.  162. 
Tyrrell  v.  Mooney,  Ibid.  4jl. 

Messrs.  Brown,  Campbell  &  Co.  v.  Daniel  Clary  and 
James  Craig,  Adiii'rs.  of  David  Ciaia^. 

tJnder  the  act  of  17'89,  Rev.  ch.  814,  sec.  4,  the  action  is  to  be  brought 
against  both  the  survivor  &  the  administrator  of  the  deceased  joint 
obligor. 

An  action  had  been  brouglit  ajrainst  (Iu-sp  Defendants  Vide  ex're 
jointly,  for  a  joint  debt  conlrarted  by  tbe  Defeiidani  Cla-    °' Davis 
nj,   and   tlie   intestate  David  Craig,  with  the   Plaintiffs,  wiikJrson 
pursuant  to  tiie  act  of  1789,  ch.  57",  sec.  5.  "  And  wbeie-  &    ihers. 
as  it  is  a  rnle  of  common  law,  tiiat  in  case  of  t!ie  death  of  post  Si. 
a  joint  obliijor,  tlie  debt  can  never  survive   against   bis    (.108) 
heirs,  execiitois  or  administrators,    which    rule   is  fre- 
quently injurious  and  oppressii-e  to  the   surviving-  obli- 
gor or  obligors  ;   to  remedy  which,   be   it  enacted,    that 
from  and  after   the  passing  of   this  act,    in   case   of   the 
death  of  one  or  more  joint  ohliqjar  or  oblij;ors,  the  joint 
debt  or  conti'act  sliall  and  may  survive  aj^.iin^t  thf  heirs, 
executors  and  administrators  of  the  deceased  obligoi   or 
obligors,  as  well  as  against  the  survivor  or   sllr^i^ors; 
an<l  wlierc  all  tlie  obligors  shall  die.  tlie  debt  or  contract 
sliall  survive  against  tlie  heirs,  executors   anti  adminis- 
trators of  all  tlie  said  joint  obligors;  and  in  all  cases  of 
joint  obligations  or  assumptions  of  co-partners  or  others, 
entered  into  after  tiie  passing  of  this  act,  suits   may  be 
brought  and  prosecuted  in  the  same  manner,   as  if  such 
obligations  or  assumptions  were  joint  and  several;  any 
law,  usage  or  custom  to  tlie  contrary  notwithstanding :" 
and  now  the  jury  being  empannclcd.  and  before  any  e\i- 
dence  given,    it  was  objected  by    Henderson  for  the   De- 
fendants— that  the  act  had  not  so  far  altered  the  rule  of 
the  common  law  as  to  allow  the  bringing  a  suit  against 
tiie  survivor  and  tiie  representatives  of  tiie  di'Ceased  to- 
gether— by  tlie  rule  of  the  common  law,   the  ilelit  would 
survive  against  tiie  survivor  ;  unless  tlic  act  had  espress- 
ly  auliiorised  a  joint  suit  to  be  brougiit,  it    couid  not    be 
done  :  tiie  act  says  indeed  tiic  debt  shall  survive  against 
the  representatives  of  the  deceased,   but  tiie  meaning  of 
that  is,   that    tiie   debt  shall  survive  against  them,    as  it 
did  before  the  act  against  tiie  surviving  obligor,  and  that 


126  Haywood's  reports. 

Sep.  1794, vt as  against  him   individually  and  separately;  in  the 
'^•^'^'''Wsarne  manner  does  it  now  survive  against  the  represen- 
tatives of  the  deceased,   and  gives  the  Phiintilf  his  elec- 
tion to  sue  either  one  or  the  otlier,  not  both  togetlier — 
and  this  will  become  evident  by  comparing  the  latter  part 
and  the  former  of  tliis  clause  together,  and  by  consider- 
ing what  was  the   rnle  of  the  common  law  before — the 
latter  part  directs  as  t(»  all  joint  bonds  or  contracts  made 
after  tlie  passing  the  act,  they  shall  be  considered  as  joint 
and  several  bonds  and  contracts — and  what  was  the  ef- 
fect of  a  joint   and  several  bond  that  the  act  refei-s  to  ? 
Why,  the  Plaintiff  might  proceed  against  all  jointly,  or 
against  each  severally,    when  all  were  alive,   or  against 
any  one  of  the  survivors,  or  against  the  representatives 
of  each  of  the  deceased  severally,    when  some  are  dead, 
or  against  the  representatives  of  each  of  the  deceased 
when  all  were  dead — but  in  no  instance  could  he  proceed 
(109)    against  the  survivors,  and  the  representatives  of  the  de- 
ceased, jointly    in  one  action — neither   can  be  since  the 
act,  in   case  of  joint  bonds  or  contracts  made   after   the  , 
passing  of  it.     For  with  respect   to  them,   it  gives  him 
precisely  the  same  advantage  and  no  other,  that  he  had 
upon  a  joint  and  several  bond  or  contract  before.     Now    ;, 
there  is  no  reason  to  suppose  the  Legislature  intended  to  fe 
place  joint  bonds  or  contracts  made  befoie  the  act,  upon 
any  other  or  better  footing  for  the   creditor,   than   those 
made  after.     Y<t  it  i.s  evident  if  the  survivors,  and  the 
rcjiresentatives  of  the  deceased,  may  be  sued  jointly,  that 
the  cre<litor  has  a  better  security  upon  them  ;  for  he  can- 
not do  this  n|)on  a  joint  and  several  bond,  wiierc  someop; 
all  are  dead  ;  nor  upon  a  several  bond,   whether  they  be 
dead  or  living.     By  such  a  construction  as  the  Plaintiffs' 
contend  for,   these  joint  bonds  mude  before  the  act,  tho' 
always  considei'cd  to  possess   fewer   advantages  tlian  a. 
joint  and  several,  or  even  a  several  bond,   will  be  cloth*' f 
ed  with  an  advantage  which  neither  of  them  possess,  of'V. 
enabling  the  creditor  to  bring  suit  against  the  survivors,'');'' 
and  the  executors  of  the  deceased,  jointly.     And  it  also^" 
subjects  the  obligee  in  some  instances  to  greater  advan-' 
tages  than  if  the  bond  was  several,  or  joint  and  several;., 
for  in  either  of  these  cases,  the  Plaintifl'may  proceed  ex»  ' 
ppditiously  and  wilhotit  del.»y  against  any  one  of  the  obll". 
gors  that  may  be  immediately  taken — but  if  the  debt  sur» 
vives  against  all  the  survivors  and  representatives  joinfc 
ly,  making  them  all  as  one  debtor,  as  the  contracting 


li 


HAYWOOU'S    KKI'ORTS.  127 

parties  Ihemselvps  wove  by  the  rule  of  tlie  common  law,  Sep.  1794. 
then  tlie  I'laintifiT  is  not  at  liberty  to  [iroceed  against  the '^-i"'''^-' 
survivors  only,  wlio  iinliaps  may  be  broiiglit  into  court, 
but  he  must  be  delay ed  in  his  suit  until  lie  has   run   out 
!iis  |)ro(:ess  against  the  others.     This  act  made    for   Ihc 
benefit  of  creditors,  certainly  did    not    intend    any   such 
thing — by  such  a  conslruclion  lliercfore,  if  tiic  debt  sur- 
vives against  the  re|tr'e.sentalives  and    the   survivors,   it 
subjects  the  Plaintiflto  disadvantages  he  was    not   sub- 
jected to  before  ;  wliich  is  contrai-y  to  the  general  intent 
of  the  act.     If  it  surxives  as  a  joint   and   several   bond, 
tiie  survivors  and  llie    rejjresenialives   of  the   deceased, 
cannot  be  sued  jointly  ;  or  if  it   survives    against  each 
severally,  they  cannot  be  jointly  sned  as  they  are   here. 
But  if  it  is  construed  to  nial<e  the  debt  survive   against 
each  severally,  then  all  the  inconveniences,  and  particu- 
larly those  intended  to   he  removed    by   tlie   act,   are  a 
voided.     He  may  |)rocecd   against  the  representatives, 
which  he  coulil  not  do  bel'oi-e  by  suing  them    when   they 
are  the  real  debtors.     Tliat  injustice  and   oppression  to     nio) 
the  survivors  (who  may  be  only  sureties)    that   the   act 
complains  of,  will   be   obviated — tlie   suit  he   will  then 
bring  will  be  sudi  a  suit  as  is  brought  upon  a  joint  and  se- 
veral bond,  as  the  act  intended  and  expressed,   and   not 
such  joint  suit  as  was  ne\er  bi'ought  upon   a  joint   and 
several  bond— and  in  case  of  the  absence  of  one   of  tlie 
jiai'ties,  he  may  proceed  instantly   against  the  other  ;  & 
not  be  delayed  by  the  necessary  formality   of  including 
both  in    one   wiit.     And    the  jniigment   that  the   court 
gives,  will  be  the  judgment  that  has  usually  lieen   given 
in  such  cases,  not  a  complex,  infurmal  judgment  against 
some  de  bonis  proprtis,  and  against  others  de  bonis  iesta- 
tis,  which  was  never  known  before;  and  which  in  many 
instain-es,  particularly  in  cases  of  devastavitf  or   wrong 
jjleading  by  the  executors,  and  no  goods  of  the   testator 
immediately  to  be  found,  would  lead  to  great  confusion, 
i\nd  the  very  same  mischief  they   intended    to   remedy, 
Jiamcly,  a  leaving  liie  wlndc  upon  the  survivor,  and  an 
exemption  of  the  testatoi's  estate  from   its  proper  bur- 
then or  proportion  in  the  first  instance. 

But  per  Judge  Jf'iUiams,  Judge  Jlshe  assenting — the 
inconvenience  before  lliis  act  wa*',  that  if  a  man  hadcon- 
fjB  tracted  a  debt  and  procured  another  to  become  jointly 
bound  with  him  as  iiis  surety,  and  then  died,  the  debt 
survived  against  the  surety  only.     So  where  there  were 


it: 
I  ai 


i2S 


maywood's  ueports. 


^^''■'^^■^•spvoral  jiiint -citnli-aetDrs,  each  of  whom  wero  equally 
*'*^~*"^^  bencfitttl  by  t'le  ContrHCt,  if  one  died,  the  whiile  debt  fell 
upon  (he  olher  ;  and  tho  act  expipsses,  that  for  the  relief 
of  ilie  uiifvivur  it  was  made.  This  it  proposes  to  do,  by 
iiMkiii.£;thi'in  ^11  equally  con  tributable  in  the  first  instance. 
This  produ(  is  equality  and  juiti<e  iinaiediately, and  pre- 
ttnis  circuity  am!  niultipliriiy  of  artions— for  as  tlic 
ruU"  was  at  the  cuumnn  law,  the  survivor  |iaid  all  in  the 
first  itislniii-e,  and  llieii  was  put  to  anotlier  suit,  to  get 
conti  iDiition  fri>ni  the  estates  of  the  deceased  :  but  now 
all  .his  is  effected  by  suint;  them  both  together.  Besides 
when  the  debt  is  first  contracted,  it  is  joint,  and  now  it 
does  not  become  several  upon  one  by  tlie  death  of  the  other; 
but  as  a  joint  debt  lies  upon  the  representatives  :  inime< 
diately  upon  the  death  of  the  deceased,  they  instantly 
step  into  his  place,  sustaining  the  same  burthen  that  lie 
did — then  how  does  the  debt  become  several  ?  Not  by 
any  part  of  tliis  law  ;  and  surely  the  Plaintiff  cannot  by 
suing  severally  upon  a  joint  cause  of  action,  make  it  to 
become  several  by  tliat  means.  Moreover,  it  was  the 
(111)  relief  of  the  survivor,  not  the  benefit  of  the  obligee,  that  -^i 
this  act  soiigut  for — but  it  is  not  an  equitable  relief  to  *  ' 
P"ii  it  in  the  power  of  the  Plaintiff  to  exonerate  him  en- 
tirely, and  throw  the  whole  burthen  upon  the  estate  of  t'i 
the  deceased,  or  vice  versa.  No  just  reason  can  be  as-  ,J 
signed  why  ir  should  lie  upon  the  estate  of  the  deceased  ^ 
wliolly,  any  more  than  upon  the  survivor,  or  the  reverse.  :^ 
As  to  the  difficulty  suggested,  that  no  judgment  can  be 
entered  up  in  any  regular  form,  the  court  is  always 
bound  to  give  their  ju.lgmeut  according  to  law;  and  if 
there  is  no  p:ei.edent  to  he  found  conlormable  to  the  new 
law  'le  foorl  must  form  one  that  will  be  so.—Et  per 
curium,  the  action  is  well  enuui^h  brought. 

Note. — Vidi-  Davis's  ex'ra.  v.  Wilkinson  and  others,  post  33i,  se%a 
the  act  f  1797,  Hev.  ch  475,  us  to  liow  the  juil(,'meiit  in  such  case  in[ 
to  br  filtered.  An  action  may  be  brouglit  against  drawer  and  endor*J| 
sers  of  ^  iiioiested  bill  of  exchange  jointly,  or  ag/inst  either  ofthetn^n 
an  ii  1796,  Rev.  ch.  464,  Suits  may  be  brotight  ag:3ia$t  the  makerv 
of  1  j>roniiiiSory  noti-,  single  bill,  bond,  &c.  and  endorsers  juinlly,  opj. 
aj.  .'list  any  one  or  more  of  tbtm,  act  of  1817,  Rev  ch.  937.  Such* 
siii'-  <i^ainsr  obligors  or  endorsers,  shall  be  consohuated,  act  of  1820,  ' 
Ittv.  ch.  1046. 

Daniel  Clary  v.  Allison. 
I^hoever  has  the  possession  of  inoiny,  has  the  property  of  it.    Money 


deposited  by  on 
ca      .  '  '-     recovi 

penoii  vkliu  makes  the  deposit 


e  pt'i'.son  to  be  paid  to  another  upon  a  contingencj^.f 
recovered  l>y  ih;'t  other,   but  must  be  sued  for  by  tSll 


UAYWOOD's    JIEPORTS.  429 

The  casp  was,  a  writ  was  taken  out  against  ^U/sok,  Sep.  1794. 
i'etiii'iiable  ti»  tlic  County  Court  of  Rowan,  and  lie  was ^-*^*'''"'*^ 
arrested  '.iiidii  ir,  and  in  oidor  to  procure  Turhorough  to 
become  iiis  bail,  lie  deposited  in  jiis  liainls  a  very  consi- 
derable sum  of  money,  and  took  a  r.ote  in  writiiicj  from 
Varborougli,  in  wliirii  lie  iM-omiscd  to  pay  tlie  money  to  G(»v. 
Blount,  upon  tlic  event  oi  Farborough's  releasement  tVoni 
his  suretyship  for  ^iWisijii.  This  writin;;  acktiosvied^^-ed 
tiie  money  (o  have  bioii  received  oi' JlUisou.  The  Plain- 
tiif  in  the  suit  was  nonsuited  for  want  of  a  declaration  iit 
the  Cimiity  Court,  and  inimcdiiitcly  commented  his  suit 
again  by  way  of  original  attadimeiit,  in  «hich  I'arbo- 
rough  was  summoned  as*  gainishce;  and  upon  his  oath 
of  garnislimcnt,  stated  tlie  foregoing  fads.  This  lallei- 
action  was  brought  lo  trial  in  the  County  Court,  and 
apjiealed  fmrn  this  Court  :  and  now  tlie  cause  coming 
on,  it  was  objected  for  JilUsoii,  liiat  by  tlie  tenure  of  the 
writing  subscribed  by  Yurhorough,  the  money  in  hiy 
hands  on  tlie  event  tliai  had  taken  place,  belonged  to 
Gov.  Blount;  and  tliat  Yarborough  was  liable  to  ])?.y  to  hiio, 
not  to  Allison;  and  should  it  now  be  conilemiied  as  ^illi- 
Sdu's,  Governor  Blount,  being  no  party  to  this  suit,  nor 
bound  by  any  deiisioii  made  upon  it,  might  sue  Yarbo- 
?'oi/^/t  afid  I'ecover  notwithstanding.  E  contra,  for  the 
Plaintiff,  it  was  argued  that  whoever  is  in  tiie  posses- 
sion of  money,  is  liie  proprietor,  and  especially  if  he 
claim  to  be  lite  proprietor  for  his  own  purjiose.s — that  as 
to  the  writing  making  it  to  be  Governoi'  Blount's,  there 
was  nothing  in  it — that  writing  is  a  jiromise  to  Allison, 
upon  a  consideration  proceeding  from  him  (namely  his 
depositing  tiie  money)  to  pay  to  Governor  Blount;  ai  ri 
if  tlie  [iromise  be  broken,  the  action  for  the  breach  must 
be  hrouglit  by  Jlllisou — that  bifore  the  passing  of  tiie  act  (\\o^ 
of  Q.  Jinn,  stat.  3  and  4  c.  9,  and  our  own  act  of  Assem-  ~  "'' 
hiy  1762,  c.  9.  the  Plainiitf  could  not  declare  upon  a 
pi'omissory  note;  and  these  acts  only  enable  the  holder  to 
declare  upon  such  notes  as  are  rendered  negotiable  by 
ihcm,  not  njion  notes  not  negotiable;  as  a  note  at  this 
day  for  the  delivery  of  a  specific  article  of  tobacco,  pork, 
*cc.  and  no  notes  are  negotiable  by  these  acts,  but  sncli 
as  are  independent  of  any  contingency  ;  but  here  at  the 
time  of  making  this  note,  it  dejiended  upon  a  contingency 
whether  the  money  mentioned  in  it  would  ever  become 
pajablc  to  Governor  Blount,  and  if  it  is  not  a  negotiable 

17 


ISU  haywoob's  reports. 

Sep.  ir94.  „o(e  at  tlie  time  of  its  makinj^,  it  can  never  after  become 
^~*"'''^'*^  so  li_v  iiny  ex  post  facto  circumstance.  Et  per  curiam, 
.^//tso)i  was  posspssed  of  this  money  and  used  it  as  Ills 
own,  and  therefore  he  must  be  taken  to  have  been  the 
pro(»iietor — whoever  is  in  possession  of  money  and  un- 
dertakes to  dispose  of  it,  is  inlaw  (he  jji-oprietor.  Et 
j;er  Judge  Williams,  this  »eiy  point  came  in  contro- 
versy at  tlie  last  term  of  H?1Kbi>roMgh  court  in  the  case 
of  ^iiinton  v.  Courtney,  or  Quintock  v.  Courtney,  anil  was 
directed  as  we  are  now  deciding  this  question.  Et  per 
curium,  |ierha|)s  it  would  he  very  diflicult  for  Governor 
Blount  to  support  an  action  u|)on  the  promise  contained 
in  this  writing,  for  want  of  beiil^  able  to  shew  a  consi- 
deration  So  the  Plaititift'  recovered. 

Note. — As  to  (lie  first  point,  vide  Qiiinto?i  v.  Courtney,  atile  iO. — 
Upon  the  other  poiflt,_fee  Comyna  on  Contrucls,  1  voL  27. 

State  r.  Irwin. 

Malice  aroretliouglit  is  express  or  to  be  implied  from  circumstances; 
intent  to  m:iim  or  disri;;iire,  may  likewise  be  implied  from  circum- 
stances ;  and  it  is  n(jt  necessary  to  prove  antecedent  Rrudg-es, 
threatnings  or  an  express  design.  IJonftssions  before  a  Justice  of 
the  Peace,  may  be  admitted  in  evidence,  aUliougli  not  reduced  into 
writing. 

He  was  imlicied,  tor  tliatlie,  on  such  a  day  and  place, 
madi'  an  assult  on  one  Joshua  Cojfce,  and  of  iiis  malice 
aforethought,  strtick  and  ptit  out  his  right  eye  with  an 
intent  to  maim  and  disfigure,  against  the  Ibiin  of  the  act 
of  Assembly,  which  is  in  these  words.  fo-ivit :  "If  any 
person  or  persons  siiall  of  malice  aforel bought,  unlaw- 
fuljy  rut  out  or  disable  the  tongue,  or  put  out  the  eye,  of 
any  iicrson,  with  inteitt  to  maim  or  disfigure;  the  per- 
son or  poi-sons  so  otfending,  their  counsellors,  abetters 
and  aiders,  knowing  of  and  privy  to  the  offence,  shall  for 
the  first  oRl-nce,"  &c.  and  thi'ii  directs  the  )iuiiishmeiit, 
niaki:ig  the  second  oiriiice  felony  u  ilhoiit  benefit  of  clergy. 
The  second  clause  is  in  these  words  :  "If  an}'  person  or 
persons  sliall  on  purpose  unlawfully  cut  or  slit  the  nose, 
bite  or  cut  off  a  nose  or  lip,  bite  or  cut  oft'  an  ear,  or  dis- 
able any  limb  or  tmrnbcr  of  any  other  person,  with  intent 
to  minder,  or  to  maim,  or  disfigure  such  person  ;  in  every 
such  Case  the  person  or  persons  so  offending,  being  tliei'cof 
lawfully  convicted,  shall  be  imprisoned  for  (he  spa(  e  of 
six  months,  and  fined  at  the  discretion  of  the  Court  be- 
(IIS;    fore  whom  such  offence  shall  be  tried."     1791,  c.  8,  srf. 


Haywood's  reports.  131 

1  and  2.  Et  per  curiavi,  malice  aforethought  is  express  Sep.  1794. 
or  implied,  and  it  may  be  implied  from  tlieciicunistrtnce  ^-^">''"*»^ 
of  the  Defendant's  striking  with  such  an  iimti'iintcnt  as  is 
likely  topi'oduce  gfeat  bodily  harm  to  tire  pei'.son  stricken, 
and  from  its  being  done,  witiiout  snfficient  piovoration. — 
Also  tiie  intention  to  maim  oi"  dlsfigtii'e,  may  be  implied 
from  ciicnmstances J  and  it  is  by  no  means  necessary  to 
prove  antecedent  grudges  or  llireatnings,  or  an  express 
design. — In  this  rase  upon  tlie  trial,  the  Attorney-Gene- 
ral called  upon  a  witness  to  sware  to  a  conCcssion  made* 
before  him  by  the  Defendant,  when  he  came  before  him 
to  be  examined  :  and  J\Ir.  Moore,  of  cmnisil  lor  the  De- 
'feinlant,  insisted  that  such  confession  ronid  not  he  given 
in  evidence  ;  he  said  a  confession  before  a  private  indi- 
vidual may  be  given  in  evidence,  hut  when  it  is  made  be- 
fore a  Justice  of  the  Peace,  as  in  the  present  case,  it  is 
his  duty  whether  it  be  for  felony,  or  a  misdemeanor,  to 
take  the  examination  in  writing;  and  that  ttiis  is  intetnled 
as  well  for  the  benefit  of  liie  pi'ismier,  as  the  Stat-,  to  t  lie 
end  that  his  confession  b«ing  reduced  to  writing,  when 
it  is  made  by  an  officer  entrusted  by  the  public  in  whom 
confidence  is  reposed,  may  not  afterwards  be  liable  to 
misrepresentation  in  the  giving  parol  testimony  of  it;, 
and  he  cited  Leach,  the  last  case,  and  the  case  of  the 
R'i'ig  V.  Jacohs  in  the  same  book.  E  contra,  it  was  in- 
sisted for  tiie  State,  tliat  the  practice  botli  here  and  in 
England  a  long  time  previous  to  these  cited  cases,  hath 
been  not  to  admit  parol  testimony  where  the  examina- 
tions of  the  pi isonei  were  re dnced  into  writing  ;  for 
then  acconling  to  the  rule  of  evidence  in  all  cases,  that 
would  not  be  the  best  testimony  the  party  iiad  it  in  liis 
power  to  produce ;  and  it  was  an  absurdity  to  say,  as 
the  cases  cited  did,  that  a  cooCession  made  in  the  pre- 
sence of  an  individual  not  engaged  by  duly  to  be  atten- 
tive, miglit  be  given  in  evidence,  and  yet  the  same  con- 
fession made  before  a  Justice,  whose  business  it  was  to  / 
examine  carefully,  shall  not. 

El  Fer  Curiam — The  practice  in  this  roiindy  always 
hath  been  to  leceive  such  evidence,  and  we  see  no  good 
reason  to  break  through  it.  There  is  certainly  an  im- 
propriety in  saying,  that  evidence  may  be  received  of  .1 
confession  made  before  a  private  man,  and  that  the 
same  confes.sion  made  before  a  Justice  shall  not,  because 
he  hath  omitted  to  perform  his  duty.     This  would  put 


1<J2  ■  Haywood's  revouts. 

Sep.  1794  it  ill  Oic  power  of  a  Justice  to  makr^  tlie  confession,  evi- 
'''"^^^^^tlciicp  or  not.  at.  his  election  ;  and  is  a  power  the  law 
(114)  never  meant  (o  give  iiini — 'he  act  is  only  directory,  and 
if  the  Justice  siioiild  not  do  his  duty  in  the  obeying  it, 
tiiat  shall  not  be  "of  so  much  jii  <iiidice  to  tlie  Stale  that 
the  evidence  shall  be  lost  bv  it. — So  the  evidence  was 
admitted. — Sec  S.  Co.  Inst.  (32.  where  malice  prepense  in 
cutting  out  tlie  tongue,  or  t"ittiiig  <Mit  an  eye,  is  thus  de- 
fined— a  voluntarily  and  of  set  purpose,  though  it  be 
done  upon  a  sudden  occasion;  for  if  it  be  voluntai'y,  the 
law  iiiiplicth  malice. 

Note Vide   Slate  v.  Evans,  post  ^l.     That  conrcssions  before  a 

Magistrate  not  rcrhiccd  to  writing  are  admissible,  see  Hull's  case,  1 
McNally,  40.  But  to  authorise  tbe  admission  of  such  conftfssions,  it 
must  be  cUarlv  proved  tliat  they  were  never  reduced  to  wriling.  1 
-McNallii  49,  50.-1  Leach  U7. 

Houser  r.  Reynolds. 

I'rnm  tiie  day  of  the  date,  and  from  the  date,  sipnify  the  same  thing  v 
and  according  to  the  intent,  are  either  inclusive  or  exclusive. 

Ejectment.  At  the  la.st  term  of  tliis  Court  this  eject- 
ment came  on  to  be  fried,  and  tlie  jury  wereemp.innelled 
and  charged  :  but  befoie  any  evidence  given,  Mr.  Wil- 
liams, for  the  Defendant,  took  an  exception  to  tiie  form 
of  the  declaration,  which  slated  Ihe  demise  to  have  been 
made  on  the  fifteenth  day  of  September,  in  the  year  of  our 
Lord  one  thousand  seven  liuiidre<l  and  ninety-one,  to 
have  and  to  iiold/7'07n  the  said  fifteenth  day  of  Septem- 
ber, for  and  during  the  teim  of  five  years ;  and  that 
afterwards,  to  wit,  on  the  same  fifteenth  dwy  of  Septem- 
ber, in  the  year  aforesaid,  the  casual  ejector  entered 
and  ousted  Ihe  PlaintiB",  who  had  entered  on  that  day 
by  virtue  of  the  said  lease.  The  exception  was,  that  llio 
Plaintiff  had  entered  and  was  oiistc  1  before  tiic  com- 
mencement of  his  lease;  he  argued,  that  the  words,  from 
the  date  or  henceforth,  are  indusive  of  the  day;  but 
from  the  day  of  the  date,  are  exclusive;  and  cited  Co. 
JAtt.  46.  BitZi.  105,  106,  and  many  other  old  cases.  For 
the  Plaintiff  were  cited  the  case  of  Pugh  v.  the  Duke  of 
Leeds,  reported  by  Cowper,  and  Runningtwion  Eject.  85. 
Judge  Williams  was  then  of  opinion,  altera  very  lengthy 
argument  on  both  sides,  that  the  ^yords  from  the  day  of 
the  date,  both  according  to  the  true  acceptation,  and 
more  especially  according  to  the  legal  meaning,  are  ex- 


Haywood's  reports.  183 

chisive  of  the  day,  and  conspquontly  that  the  ouster  was  Sep- 1^94. 
Jbefore  the  I'Lintiff' s  title  commenrcd,  and  nonsuited  the  •-''"^''>-' 
PlaintifF — but  next  day  he  {^ranted  a  new  tiial,  that  the 
Plaintiff  might  obtain  a  rule  to  ann-nd  so  as  to  bring  on 
the  arijumeiit  again  at  the  ensuing  term,  when  tiiere 
would  be  more  Judges  pi-esent,  bef  (I'l-  whom  tlie  point 
might  undergo  a  tliorougli  exaniinatioii  ai.d  become  set- 
tled :  and  now  at  this  term,  tlie  counsel  for  the  l^laintiff 
informed  the  Court,  he  was  leady  on  the  pmt  of  the  Pliun- 
tiff  ro  |uOi:eed  to  the  trialof  this  cause,  huf  ,is  an  olijeciion 
had  been  tviken  to  tlie  declaration,  wbii  h  if  valid,  and 
not  to  be  g^itten  over  either  by  amendment  or  by  some 
oilier  means,  would  render  it  useless  lor  the  PlaiiiiifTto  (115) 
proceed  any  farther,  he  desiii d  to  have  the  opinion  of  the 
Court,  upon  it;  whereupon  they  directed  it  to  be  argued 
— and  the  counsel  for  tlie  FlaintiB' insisted  that  the  de- 
mise was  well  laid  in  the  declaration,  and  commenced 
on  the  fifteenih  day  of  Se|item!)ei',  in  the  year  one  ihou- 
sand  seven  hundred  and  ninety-one — the  words  from  rlr.; 
fifteenth  day  of  September,  or  from  the  day  of  the  date, 
were  inclusive  or  exclusive  according  to  the  subject 
matter,  and  would  be  interjireted  either  one  or  the  other 
as  wduld  best  answer  the  intent  of  tlie  parties — ut  res 
mdgis  valeat  qnam  pereat;  and  this  pnlnt  was  so  settled 
in  the  case  of  Pugh  (J-  wife,  against  tke  Dnkc  of  Leeds, 
reported  by  Cowper,  and  recognized  by  Runn'uigton,  85  ; 
and  though  formerly,  as  many  of  the  old  cases  will 
prove,  these  woi'ds  in  leases  were  held  to  be  exclusive  of 
the  day,  yet  the  rule  has  been  established  of  hue  as  be- 
ing incompatible  with  reason  and  good  seiiie.  In  the 
present  case  should  the  old  rule  prevail,  it  cannot  answer 
any  valuable  purpose,  but  the  contrary  ;  and  the  lease 
here  is  entitled  to  a  more  favorable  exposition  than  al- 
most in  any  other  case — it  is  fictitious,  not  real,  for  the 
purpose  of  trying  a  title  to  lands  ;  and  to  nonsuit  the 
Plaintiff  for  so  trifling  a  slip,  supposing  it  to  be  one, 
would  be  rather  a  n-proach  to  the  law,  than  any  thing 
else.  If  tlie  intent  of  the  parties  is  t!ie  true  rule  of  ma- 
king these  words  to  be  inclusive,  or  exclusive,  as  in  the 
case  cited  it  is  decided  to  be,  then  surely  (he  lessor  of  the 
Plaintiff  and  his  lessee,  must  be  supposed  to  have  inten- 
ded such  a  lease  as  would  try  the  title  upon  an  ouster 
committed  on  the  fifteenth  of  September!  and  consequent- 
Ty  a  lease  commencing  on  that  day. 


184  uaywood's  UKPOurs. 

Sep.  1794.  E  contra,  it  wa.s  argued  that  the  case  of  P«g'/t  ^  wi/le 
^^^"""^'—^  V.  the  Duke  of  Leeds,  WAH  an  cxrrption  to  the  j»i'tiopal 
rule  of  law.  foiincd  by  tlic  Court  in  that  inRi'anrc  to  got 
ovri-  (lie  piece  of  manifest  injiislici'  thai  would  have  been 
operated  by  adhering  strictly  to  the  old  rule.  'I'iiat 
was  a  lease  made  under  a  piuver.  as  a  provision,  for  an 
only  daughter,  and  had  it  been  adjudged  to  have  been  a 
lease  in  rever.sion  (^as  it  would  have  been,  had  the  words 
from  the  day  of  the  date  been  h>ld  to  he  exriusive)  it 
would  have  been  wholly  void  under  the  power;  but  here 
it  may  be  consti'upd  to  romiuence  after  the  15th,  and  yet 
be  a  good  lease.  It  is  made  jiursiianl  to  a  power 
which  says  it  shall  be  void  if  made  in  reversion,  and 
though  the  Court  in  that  case,  cited  and  examined  all 
the  old  authorities,  and  seemed  t<i  overrule  them  on  ac- 
(116)  Count  of  their  inconsistency  and  inrompatihility  with 
each  other,  yet  it  is  observable  that  in  this  point  they 
wei'e  all  uniform  in  agreein.ir,  that  from  the  day  of  the 
dale  is  exclusive.  Curia  advisure. — And  after  some 
days  deliveird  their  opinions  : 

Judge  WiiLiAMS — I  was  jnesent  al  the  last  term,  and 
I  was  then  very  strongly  ofopinion,  that  from  the  day  of 
the  date,  was  exclusive,  hut  I  have  since  allerbd  that  opin- 
ion. In  law  iheie  is  no  fraction  itf  a  <lay — date  signi- 
fies, tlieday  on  wiiich  an  instrument  is  delivered  ;  and  to 
say  from  the  date,  is  the  same  thing  as  to  say  ficim  the  day 
of  the  date,  and  from  the  date  is  inclusive — from  hence- 
forth, is  inclusive — hut  it  can  only  mean  IVom  this 
day  when  the  instrument  is  delivered;  therefore  I'rcnii 
lienccforth,  from  tlie  dale,  and  I'rom  the  day  of  the  date, 
must  all  mean  (he  same  thing ;  and  ilie  first  of  them  is 
admitted,  on  all  hands,  to  be  inclusive. — Judge  Ashe — 
From,  is  either  inclusive  or  exclusixe,  as  intended  by  tho 
parly  at  the  lime  ol  inaking  it — fnnn  such  a  town  to  such 
a  town,  in  respect  of  distance,  must  mean  inclusive; 
otherwise  in  the  computation  ol'  distance,  the  space  that 
these  towns  occupy  will  not  lie  computed  at  all.  It  is 
soused  in  Inly  ^rit,  •"•From  everlisting  to  everlasting 
thou  art  God."     So  also  in  poetry, 

*'  Gre.'it  .love  laughs  from  liis  imperial  throne — 

"  To  he»r  tlie  morlTis  boast  of  pniwess  not  tl)eir  own." 

Moreover  the  case  cited  from  dm'per  was  intended  to 
form  a  general  rule,  and  to  settle  the  law  for  the  future; 
and  is  peculiarly  recognized  in   Bunnington  as  settling 


Haywood's  reports.  135 

tlie  law  in  cases  in  pjpctmont,  and   rsfablisliincf  t!ie  an- Sep.l794. 
ticnt  distinction  lictwccti  the  terms   IVoni   the   date,   and  ^-^"^'"^i' 
fi'oin    the  day    nf  ("lie  date. — Eljier  curimn — Tiie  decla- 
ration is  suflicieiit. 

Note. — In  the  arftiimei  t  nf  this  case,  it  was  arjjiicd,  llmt  the  words 
coming  tii'lcr  the  "  Scilicet,"  whel'e  the  ouster  is  desciihcd,  should  be 
rejected,  and  ilie  word  "after«a'di"  only  retained.  In  which  cass 
It  would  riiid  Ihui,  to  have  and  lo  hold  Crom  the  said  15th  day  of  Sep- 
tembei',  for  and  ditrinpr  the  term  ol'fivf  years,  and  afterwrirds  the  caau- 
al  ejeriop  entered — omittin.5  the  w  irds,  to  wit,  on  the  same  fifieenth 
dai  (if  S.'>pteniher,  in  the  year  afu'esaid  ;  nnd  foi-  Hlis  were  cilid 
Bull.  Nisi  Privs  J 06.  [Cro  Jac.  96.]  and  sorne  ca»es  ii-on-.  E?//i;iaf.?c;; 
and  also  that  omissions  in  a  declaration  in  ejecinneut,  are  amendable 
— anil  authovtics  were  C'ted  to  this  point  ;  bnX  the  .<^','«"t  f^^injc  of 
opinion  for  llie  first  poii.t  m;ide  in  the  ar^^ument,  they  gave  no  opin- 
.ion  on  these. 

Note.— A'ide  Mams  on  Ejectment,  note  to  page  TJ)§,  where  the 
case  of  Piigli  V.  Dulce  of  Leeds,  Cot.<Imi-  714,  is  cormVlered  as  decisive 
of  the  i)iie»lion  agitated  in  this  c:ise.  ■' 

Hamilton  v.  Dent. 

AVords  In  an  action  of  slander  bear  that  slgnific.ttidn,  which  ihey  have 
in  common  parlance  ;  therefore  to  say  one  has  sworn  false  in  Court, 
implies  malice,  and,  also  in  this  country,  must  mean  such  a  Court  as 
has  power  lo  administer  .mi  0.1th  ;  and  ic  is  therefore  actiojiable. 

Action  for  words,  in  wliich  tlie  declaration  stated  li'iat 
the  Uelendatit  inaliciotisly  spoke  of  the  Plaintiff'  tliese 
words,  "  Yiiii  swore  false  in  two  particulars  in  one  oat-ii  ^  * 
ill  Court;"  then  it  went  on,  and  tiiat  afterwards,  to  7vif,  (117) 
the  same  daj-  ami  year,  lie  s|ioke  these  other  words,  "Ho 
swore  false  in  two  patticniar.s  in  one  oatli  in  Conrf," 
jneaiiiiijfthe  Cmitity  Conrt  of  Gtiilfiird,  wliicii  is  a  Coiirt 
of  record.  Upon  the  t^eneral  issue  pleaded,  the  Jury 
found  generally  for  the  I'laintift",  and  assessed  his  ilaiua.i^e 
to  sixty  ponnds:  and  ihereupon  Mnore,  foi-  llio  Defen- 
dant, inoveil  in  arrest  of  judi^nicnt,  and  assif;iie(l  tlicse 
as  liis  inincipal  icasnns,  to  wit,  that  the  words  in 
^^  the  first  count  are  not  actiooiible,  ai.d  thai  those  in  the 
second  !ire  not  laid  lo  be  sp'iUen  maliciously  or  wiiii 
any  ill  motite.  There  weie  other  reasons  asssi/;ncd, 
but  be  seemed  to  lely  upon  these  tinly,  and  liiesc  reasons 
come  on  now  to  be  ar.i^ued. 

-Moore  for  the  Defendant — Every  ileclaralion  oujjht  (o 
|be  plain,  tiiatthe  C'oiiit  and  ihe  jury  may  iindei  stand  it ; 
(brief,  that  the  records  of  the  Court  may  not  be  cntaMjjIeii 
iwilh  unnecessary  matter;  and  certain,   that  the  Uefcn 
ilaiit  may  know  jirccisely  wliat  to  defend  himself  against. 


136  HAYWOOD'S    HEPORTS. 

Sep.  1794.  anil  that  lie  may  p|pad  it  in  bar>to  subsequent  suit  for 
^^~'<^^^  the  same  cause ;  and  it  ought  to  be  certain  inatter,  wliicli 
in  law  will  8ii|>|)ort  the  action — to  diarge  a  man  with 
false  sweMii'ia:,  dues  not  necessarily  imply  that  he  was  per- 
jured, &  for  that  reason  has  been  held  always  not  actiona- 
ble; as  to  say  of  a  man  that  he  is  foresworn,  which  may 
be  in  common  conversation,  or  not  in  a  Court  of  record) 
in  which  case  the  fulse  swearing  cannot  amount  to  per- 
jury— tlie  same  thing  is  it  to  say  he  is  foi-esworn  in  Court, 
meaning  a  Court  which  had  no  jurisdiction  to  administer 
an  oath.  He  cited  4  Bac.  M.  483,  484.  4  Pep.  15. 
Cro.  El.  4?9,  788.  905.  Velvertou  S.  C.  Danver's  M. 
•'Your  brotlier  took  a  false  oath,"  held  not  actionable. 
As  to  the  seconil  count,  if  that  be  bad,  thougli  the  first  bo 
a  g'lod  count,  as  damages  are  assessed  generally,  and  tlie 
Court  cannot  know  whether  they  were  assessed  upon  the 
good  or  the  bad  count,  the  whole  is  vitiated  and  no  judg- 
ment can  be  given  ;  and  this  second  count  states  nosucli 
matter  as  is  sufficient  to  suj)poi't  an  action ;  it  states 
words  spoken  without  saying  they  were  spoken  mali- 
cionsly,  witliout  which  cii-cumstance  they  arc  not  action- 
able. 3  Bl.  Com.  124,  125.  4  Bar..  Ab.  515.  4  Rep.  \7. 
Cro.  Car.  443.  Cro.  El.  334.  Cro.  Jac.  126.  Cro. 
El.  496.497.  10  Rep.  139.  2  Bl.  Hep.  750.  The  words 
laid  in  the  secmtd  count  may  be  true,  and  yet  not  amount  ^ 
to  a  charge  of  perjury.  A  Bl.  Com.  130.  \  Uaxvk.  P.J 
C.    172.  3 

E  contra,  it  was  argued,  that  the  rule  as  to  actions  for^ 
slander  is  considerably  changed  at  this  day  from  what  it ., 
(118")    was  formerly.     In  antient  times    tlu-re    were  two    rules,! 
which  principall}  governed  these  actions,  namely,    that  , 
words  were  to  be  taken  in  meliori  sensu ;  and  secondly,  ■ 
that  they  must  be  such  as  if  true  tiie  I'laintiff  was  liable 
to  be  punished  criminally.     As  to  tiie  fust  of  these  rules, 
it  is  now  exploded  ;  and  as  to  the  second,  if   the   words 
are  such  as  accoi-ding  to  common  acceptation,  are  expres- 
sive of  a  charge  that  would  render  a   man  liable  to  pun-,, 
ishment,  the  action    will  now    lie:  and   even    where  the 
woi-ds  are  defamatory,  tlioiigh  not  containing  a  criminal 
charge,  an  action  hath  been  held  to  lie.     It  was  anticnt- 
iy  the  policy  of  the  law  to  discourage  actions    for  slan-     j 
der,  ad  obviendum  malUice  Itomimnn,  as  the  old  books  ex- 
pressed it ;  but  in  modern  times,  the  action  has  been  en- 
couraged to  prevent  breaches  of  the  peace.     But  eve« 


HAV  wood's  uepokts.  187 

accordin.:;^  to  tlie  anciptit  autliorili.'s,  this  action  would  Sep,  ir94. 
Ijp  for  siich  as  words  arc  stated  in  iht-  decl/iratioii,  inucli  ^-^"""''^^ 
iimre  will  it  lie  bj'  the  iiii)di'rii  auihorilies.  AccoiMJing 
to  the  old  cases,  to  say  a  man  vvas  fniswurn  in  a  Court, 
iiii|)lyiii,q;  such  a  Court  as  had  a  li.i^ht  to  adiniiiisicr  mi 
oath  in  a  judicial  |ii'oci'cdiu.s^,  w;is  actionable,  lie  cited 
Cro.  El.  185,  135,  29r.6O9,304.  Cro.  Cur.  28S.  322,  387, 
378,  .^09.  Lufer.  538.  The  rule  at  tliis  day  is,  that 
words  intended  to  det'amc,  and  calculated  to  efTect  that 
pui-po'^e,  are  artionabh',  couti'ary  to  the  i-iiie  laid  down 
in  4  Rep.  15,  b.  and  lie  cited  L.  Raij.  960,  Coiv.ZTS. 
Sulk.  69J.  Moreover  the  declaration  states  that  by 
means  of  speaking  tlie  words,  the  I'iiiiutift"  could  Hot  be 
elected  a  i'ei)rcseiitalive  in  the  House  of  Commons  tor  the 
county  of  Guilford,  as  he  had  been  before  for  several 
years;  and  the  jury  liave  found  this  alletjalioii  as  will 
as  every  other  part  of  the  declaration  to  be  true.  As  to 
this,  the  rule  is,  that  though  the  words  spoken  be  not  of 
themselves  actionable,  yet  if  they  are  followed  by  special 
damage,  the  action  will  lie.  The  loss  of  his  election, 
which  would  have  been  honorable  to  the  Plainllft",  is  a 
special  damage.  He  cited  Cro.  Jac.  323.  4  Rep.  1",  Cro. 
EL  340.  Sulk.  693.  Bull.  6  and  7.  'VVhiU  is  called  tin; 
second  count  in  this  declaration,  is  not  ho  ;  it  is  only  a 
laying  the  words  another  way  in  Ihe-same  count,  and  liie 
whole  declaration  is  hut  one  count ;  and  if  in  the  same 
count,  some  words  be  actionable,  and  some  not,  and  da- 
mages be  entirely  assessed,  after  the  verdict  they  sliatl 
be  intcnd.ed  (o  have  been  assessed  for  the  actionable 
words.  He  cited  hull.  8.  Cro.  EL  237.  10  Rep.  130  to 
Osborne's  case  131.  Cru.  Jac.  630.  Cro.  El.  329,  788.  Cro. 
Cqj,  328.  1  Nalk.  119.  2  Cro.  598.  But  granting  that 
this  is  a  second  count,  as  the  Delendanl's  counsel  insists  ni9'\ 
it  is,  yet  the  word  maliciously,  is  not  of  nece.-sity  to  be 
inserted.  1  Term.  Rep.  11,  or  Duriiford  and  East  11. 
The  lule  is,  where  the  words  themsilves  are  such  as  im- 
ply malice,  there  it  need  not  be  staled  they  were  mali- 
ciously spoken  ;  but  where  they  are  such  as  may  lea- 
soiiably  lie  suj. posed  to  have  been  spoken  without  malice, 
as  if  sjiokcn  on  a  necessary  occasion,  or  in  a  confidential 
way  intended  lor  the  benefit  of  the  hearer  only,  there  ' 
they  must  be  laid  to  he  sp(>ken  maliciously.  As  if  a 
man  enquire  of  the  character  of  a  servant  of  hia  former 
master,  and  he  gives  him  a  bad  character  ;  here  the  bad 
<''iarac  tcr  may  be  rcftsonably  supposed  to  be  given  with 
18 


168 


HAYWOOD  S    «i:i'OUTS. 


Sep.  1794.  i,|i(,,|t  („)iy  to  inform  tlic  ciiquiicr  truly  of  the  I'laiiitiff's 
y^"*"^*^  citaiv.ctcr,  to  answer  Iiis  reijiicst,  and  williout  any  mali- 
cious motive  towards  the  I'lainliflT;  ami  in  sucii  case  it 
is  (he  spcakiiip:  the  words  with  malice,  tiint  only  will 
make  him  liable  to  tiic  action,  and  it  ought  to  be  laid 
that  lie  spoke  them  maliciously.  So  of  every  other  case 
\\liere  it  may  reasonably  be  supposed  from  the  occasion, 
tliey  v\eic  spoken  willi  no  ill  intent  to  the  PlainlifT,  tlio 
malice  of  the  speaker  is  tlie  only  circumstance  that  can 
turn  (he  scale  aj^ainst  him,  and  it  must  be  expressly  sta- 
ted in  the  declaration  and  found  hy  the  jury.  But  it  is 
equally  true,  that  this  circumstance  need  not  be  alledged 
in  any  case  W'hei-c  tlie  woi'ds  themselves  manifestly  shew 
the  evil  desii^n  of  the  s|>pakei'.  But  suppose  that  wtn  d 
necessai-y,  yet  now  since  the  jury  have  found  a  vcnlict 
against  the  Dcfr'iidant,  it  must  be  jiresumed  they  were 
spoken  maliciously,  as  otherwise  under  the  direction  of 
the  Court  they  could  not  have  found  foi-  the  Flaintiir; 
and  the  defect  in  the  declaration,  supposing  it  to  he  inie, 
is  irmedied  by  the  verdict.  Bull.  J\'isi  I'riu^  S'2l,  220. 
Salk  9.  L.  Uaij.  109,  811,  1214.  4  liurr.  2020.  Z.  .Mod. 
213.  3  Mod.  lt»2.  258.  He  concluded  with  praying  judg- 
ment for  the  I'liiinlifT. 

Mr.  jMoore  in  reply — The  .Judges  have  not  the  power 
to  declare  any  thing  to  be  law,  but  that  which  is  so  de- 
clared by  the  Legislature,  or  established  as  the  common 
law  as  found  in  the  books  of  repoits — to  say  thev  are 
not  bound  down  by  foruier  decisions  establishing,  or  ra- 
ther ascertaining  what  is  the  common  law,  is  to  place 
the  propeity  of  ail  the  citizens  in  the  arbitiaiy  and  ca- 
pricious dispositions  of  the  Judges.  'I'liese  old  cases 
were  undoubtedly  considered  to  he  the  common  law.  and 
the  Judges  in  England  had  no  power  to  alter  it  by  t'leir 
miidern  decisions — some  of  which  say  there  is  no  rule  to 
be  observed  in  such  cases,  but  tlie  undeistaniiitig  of  the 
Judges — establishing  a  doctrine  dangerous  to  liberty  in 
flQO')  *'"  *'^''^'"*'*  According  to  this  piiiici|)le,  no  man  knows 
^  ^  nor  can  know  until  he  hears  the  sentence  of  the  Judge, 
what  words  lie  may  speak  with  siilVty — one  set  of  Judg- 
es may  entertain  one  o|)iniou,  another  set  of  them  a  quite 
dilTeii  nt  o))inion.  There  sliould  be  some  certain  lulc  in 
this  as  wtll  a<f  ill  all  other  cases,  from  wliich  the  Court 
should  not  depart ;  and  this  is  found  in  the  books  of  re- 
ports ascertaining  what  the  common  law  was  beloiT  our 
revolution,  and  whicli  is  declared  by  our  Legislature  to 


Haywood's  reports.       ,  ,     139 

be  in   force  lierc.     Tlie  common  law,   as  tnoilificd  and  ^'^P-^''^'- 
changed  by  decisions  made   lo  suit  the  circumstances  of  ^■^~'''^'*^ 
the   people   of  Enj^land   since   that   pci-ioil  ;  or  pei-iiaps 
from   other    motives    less  commendable,    and  wliirh   arc 
handed  to  us  in  the  modern  hooks,    arc  not  llie  law  tliat 
is  referred  to  by  our  acts  of  Assembly  ;  tliey  have  adopt- 
ed liie  common  law  as  it  was  at  the  time  of  iiiakin;;  liio         * 
acts,  and  as  it  had  been  received  here  Ibiiuerly.     This  is 
the  law  by  which  our  Courts  are  bound,  and  they  must  as- 
certain it  by  the  cases  adjudt^ed  before tlieseEni;lish  inno- 
vations  took  i)lace.     Curia  ndvisare  vult.     And  now  o:i 
the  last  day  of  ihe  term   they  gave  judgment  for  the, 
riainliflf. 

Judge  Ashe — Arcnrding  to  the  old  authorities  words 
are  (o  be  taken  i?i  mcliovi  sensii,  to  discourage  aciions 
for  slaniici-  ;  but  now  the  rule  is  thans-ed,  and  they  arct') 
be  taken  to  have  that  signification  which  they  bear  in 
cnmiTwn  parlance  ;  and  taking  them  in  that  sense,  in  tlie 
present  case,  they  clearly  impart  a  charge  of  perjury. 

Judge  Williams — The  old  authorities  say,  thtt  (he 
words  sjioken  must  be  such  as  imimle  a  crime  puuisiia- 
ble,  yet  there  are  many  of  these  old  caMS  wlivre  actions 
of  slandei-  have  been  maintained  without  the  assistance 
of  this  rule — as  to  say  of  a  young  lady,  you  went  to  such 
;i  place  to  tlroj)  ymir  stink  ;  ami  besides,  the  old  aullio- 
rities  cited  on  the  [lart  of  the  Defendant  go  to  tliis,  that 
if  the  W'wds  were  foresworn  in  such  a  Court,  incni inn- 
ing it,  and  that  appears  to  be  such  a  Court  as  could  ad- 
minister an  oath,  it  stidiciently  implied  a  (harge  of  per- 
jury to  support  the  action — but  if  they  unl}  ( liargcd  !.im 
with  being  foresworn  in  Courtj  they  would  not  sui-jjort 
the  action.  The  reason  of  this  ditfeience  is,  tiiat  in  En- 
gland there  are  many  Courts  which  ha\c  no  power  to 
administer  an  oath,  and  if  an  oath  sliould  he  administer- 
ed, and  the  party  swear  falsely,  it  w.is  init  iiorjury  ac- 
cording to  the  autlioriiies  cited  fioiii  t  JJl.  Ci)i:i.  IJu.  1 
Ilarv.  I'.  C.  17^2,  and  the  Court  would  not  intend  the  ('lor') 
speaker  of  the  worils  meant  such  a  Court  as  could  law-  ^ 
fully  administer  an  oath,  when  he  had  not  exjiiessly 
named  such  an  one ;  liecause  another  rule  was,  that 
words  were  to  be  taken  in  indiori  sensii.  LSut  these  I'ca- 
sons  will  not  apply  here — there  are  no  Court-i  in  this 
countiy,  of  course  none  in  the  County  of  (luilford,  but 
such  as  by  law  may  legally  administer  an  oath  ;  i!ie  Or- 
phan Court  has  been  singled  out  as  one  that  cannot  ai' 


140  jiA\  wood's  repokts. 

Sep.  1794  minister  an  ofllh  ;  but  I  think  the  Or|ilian  Court  may 
'"^'"''^''^  legally  adminisler  in  retrard  to  s«rli  matters  as  arc  willi- 
ili  tlieir  jurisdiction.  It  will  follow  tliercfurc,  that  to 
say  a  man  swore  false  in  Court  in  lliis  roiintry,  is  the 
same  l^iinp^  iis  to  say,  lie  swore  falsely  in  a  Court  having 
power  lawfully  to  administer  an  oath  to  him.  and  by 
the  old  atitlioiit'es  tlienificlves  siirh  words  would  support 
an  action  amouniiiit;  to  a  charge  of  perjury. 

Et  per  curium. — Let  tiie  Plaintiff  have  judgment,  and 
it  \v>is  enlei'ed  accordingly. 

Note.— Vidf  Brorf'C  v.  Siila,  3  Jtlur/.!,.  5'i.  Jfolt  v.  Scholefield,  6 
Term  Rep.  691. 

James  Conncrx'.  Gwin'sEx'rs.     A  case  in  Equity. 

A  negro,  whose  life  was  f'orftitcd  to  ttie  public  for  murder,  was  solJ 
,    under  exeeutioii,   without  tli:tt  fact  bcinff  then   known.     A  bill  in 
Equity  b)  the  purchaser  praying  to  stand  in  ihe  place  of  the  judg- 
ment ciediiiiis,  for  the  amount  of  tlie  purchase  money  was  sust:iined 
by  the  Court. 

The  hill  stated,  that  two  executions  being  writs  of  Ji. 
fa.  issued  from  the  County  Courts  of  Mecklenburg  and 
Iredell,  at  the  itistancc  of  different  Plaintifls,  and  were 
levied  by  the  Sheriff  on  the  property  of  the  testator  in 
his  lifetime,  and  particularly  on   a   negro  fellow  named 

;  and  that  the  projierty  was  advertised  for  sale — 

that  before  the  day  of  sale,  this  negro  privately  murder- 
ed the  testator,  and  that  on  the  day  of  sale  the  perpetra- 
tor of  the  murder  had  not  been  discovered.  That  this 
negro  was  sold  on  that  day,  and  purciiased  by  the  Plain- 
tiff for  a  sum  of  mmiey  amouniing  to  the  judgments, 
which  he  paid  in  discharge  of  them.  That  afterwards  it 
was  discovered  this  negro  had  committed  the  murder, 
whereupon  he  was  tiied,  condemned  and  executed ;  and 
the  bill  prajed  that  as  the  life  of  the  negro  was  in  fact 
forfeited  to  the  public,  at  and  before  the  day  of  sale  j 
and  that  as  an  action  at  law  could  not  be  supported  by 
the  Plaintiff  against  the  executors,  that  this  Court  would 
deciee  him  to  stand  in  the  place  of  the  judgment  credi- 
tors, and  to  be  considered  in  the  li.ght  of  ptirchaser  of 
the  benefit  of  their  judgments,  so  as  to  have  the  estate  of 
the  testator,  as  to  the  amount  thereof,  subject  in  the  same 
manner  it  was  at  the  lime  when  the  money  was  advanc- 
ed by  him.  The  Defendants  demurred  to  this  bill  for 
want  of  equity,  but  agreed  that  if  tlie  opinion  of  the 
(t2S)    Court  should  be  against  them  on  this  point,  they  would 


HAYWOOD'S    HET'OUTS, 


l4l 


uot  flirt lier  contpnd  against  the  PlaintiR;  as  (he  facts  o^:*' l'^''- 
stated  in  t"P  bill  wn-e  true,  but  would  submit  to  such  dc-  ^■^'"^^"*-' 
cree  as  th»-  Court  thought  proper  to  make. 

And  now  this  rauic  came  on  to  be  tried,  and  the  de- 
murrrr  being  argued  : 

Per  curiam.  Jiulge  Ashk  and  Judge  Wu^liams,  \vc 
are  ch  arly  of  o|iiniiin  llial  tiie  facts  stated  arc  projier  for 
the  jurisdictioh  of  this  Court,  and  if  true,  thai  the  Plaiu- 
tift'  is  entitled  to  relief  agreeably  to  the  prayer  of  this 
bill.     Whereupon  a  decree  was  entered  accordirrgly. 


HILLSBOROUGH,  OCTOBER  TERM,  1794. 

Flowers  V.  Glasgow. 
On  demand,  previous  to  bringing  detinue.  Defendant  acknowledged, 
that  the  negrocrs  were  in  liis  possession.  Proof,  tbr.t  he  had  given 
one  (if  the  negroes  to  his  son  in-law,  who  wns  in  possession  of  him 
at  tlie  time  of  the  demand,  shuU  not  prevent  the  Defendant's  liabi- 
lity 10  the  action. 

Detinue.  This  cause  now  came  on  (o  be  tried  uiion 
the  general  issue,  and  tiie  proof  of  the  demand  made  by 
the  PlaiiitiflT  previous  to  the  institution  <if  his  action  was, 
that  Plaintiff  di'niaiidid  tiie  negroes  f, Tames  and  Demp- 
sen  J  of  the  Defendant,  who  ackiio.vledged  they  were 
both  ill  his  possession,  and  said  lie  should  not  d.-liver 
them  ;  and  that  this  demand  was  in  JaMiMiy  or  Febru- 
ary, irsr.  The  Defendant  then  proved,  that  two  years 
before  that  period  he  had  given  Joiner,  to  his  son-in-law. 
Mr.  Williams,  and  Ii.kI  ;it  the  same  time  given  him  pos- 
session, which  he  had  continued  ever  since;  and  that 
the  negro  James,  in  .January  and  February,  1787,  was 
in  ^f^illiam^s  possession. — It  was  argued  by  General 
Davie,  that  Qlasgow,  as  a  parent,  was  willing  and  inten- 
ded to  undertake  the  defence  of  liie  action  himself,  and 
his  acknowledgment  must  ho  taken  as  eviilence  to  that 
amount.  Et  per  curiam,  Ashe  and  VVili.iams — Tiie 
evidence  must  he  so  understood  ;  and  they  directid  the 
jury  that  tliis  evidetice  was  suffi(  lent  proof  of  the  posses- 
sion having  been  in  the  Defendant  at  that  time  ;  but  (hi' 
cause  for  another  reason,  was  adjoui-nei!. 

Note. — .Iiulge  Williams  said  in  this  case,  upon  unotliei'  part  of  tlic 
argument,  that  he  should  yield  to  the  decision  in  ilie  case  of  T"unm» 
and  Putter,  until  it  should  lie  contrailicted  tjy  a  more  full  decision  to 
the  contrary.  It  was  decided  !iy  two  .Jiidp;<.«,  Asnv,  and ''!'r''i  eh,  a- 
gainst  his 'opinion. 


142 


-HAYWOOD'S   HElOUrs. 


Oct.  1794.  Allen's  Ex'rs.  v.  Montfoit  StokcH. 

A  plea  to  the  jurisdiclion  of  the  Court  tiiulcr  ttie  act  cf  171)3  Her  >■■ 
392,  is  to  he  decideil  as  to  tin;  amount  for  which  the  suit  is  brought^ 
only  by  the  writ  a^d  ileclaration. 

Prl)t.  Tlio  bond  was  fi)r  o>io  liiimliril  pounds,  but  re- 
duced by  payments,  as  the  Def  ndant  allcdsed.  to  about 
tliirly  iioiinds  ;  lie  jdeadcd  to  the  juiisdiciion  of  tlie. 
Conit  accoi'din.e;  lo  the  act  of  1793.  r.  19.  wliirli  directs 
that  from  and  after  the  passing;  of  this  act,  no  suit  shall 
be  originally  commenced  in  any  of  tlie  Siipeiior  Courts 
ri23)  '"  ''''s  State  for  any  debtor  demand  of  less  value  ilian 
one  linndrcd  poumh.  where  the  Plaintiff  and  Difendant 
lived  in  the  same  district ;  or  fni"  less  than  fifty  pounds, 
where  tlie  parties  lived  in  dilfeient  districts;  and  if  any 
suit  shall  be  coininciiced  contrary  to  the  true  intent  and 
mcanin,:^  hereof,  oi-  if  any  person  shall  demand  a  .(greater 
sum  than  is  due,  on  piii'|iose  to  evade  tiiis  act;  in  eithei- 
case,  the  I'laiatili"  shall  he  non-suited  and  pay  costs  :  and 
the  Defendant  set  forth  in  his  plea,  tliat  tin-  real  and  true 
demand  of  the  Plaintirt'  was  of  less  value  than  fifty 
pounds  ;  to  which  plea  there  was  a  rejilicatioii  and  issue. 
Etper  curiam,  Judi;e  A^hk  and  ■Tuda;e  Willivms — 'I'liis 
is  an  issue  to  be  determined  by  the  Court,  and  that  the 
writ  an"d  declaration  was  proof  of  the  ainonnt  of  the 
Plaintiff's  demand,  and  as  the  sum  demanded  in  the  writ 
and  declaraiion  was  above  the  sum  of  fifty  pounds,  they 
ordered  a  rcspondeas  ouster,     ((uere  dc  hoc. 

Note — Vide  Stir.  Part,  of  McA'au^'lon  &  Co.  v.  Hunter,  post  454. 
Bell  V.  Bell,  1  Mur.  95.  McGhcc  v.  Uraus'im  &.  Jordan,  2  Car.  Law 
Hep.  260. 

Christmas  and  others  v.  Campbell  and  olhers. 

An  affid;ivitof  an  agent,  not  a  parly  in  the  fuil,  cannot  lie  annexed  to 
an  answer  to  disbidve  an  ininnclion.  Itulaii  order  niiiy  be  n  adeto 
have  the  fact,  which  the  affidavit  vvus  inieiitled  to  show,  fried  by  a 
jury  at  the  ntxt  term. 

Catlell  Campbell  and  his  partners,  merchants  iii  Pe- 
tersburg;, recovert'd  a  jutlgmeni  on  delit  in  the  Superior 
Court  here  last  term,  a.i^iinst  Christmas  and  his  part- 
ners ;  and  since  the  last  term,  the  OclVndants  filed  their 
bill  in  equity,  and  obtained  an  injunction.  'I'hey  stated 
in  the  bill  that  when  they  s^ave  the  bond,  Campbell  pro- 
mised not  to  sue  them  upon  it,  and  that  they  were  indu- 
ced to  confess  the  judgment  by  Mr.  Tatom,  tie  agent  for  , 
Campbell  <^  Company  ;  wku  prutniseU  tlicio,   that  if  they 


UAYWOOn'S    liEPORTS. 


143 


■would  Ciirli  |>;»y  llirir  pioii'iitiaii  of  five  liimdreil  dollars, 0<=**  ^''^'*' 
on   or   Ixfiiic    Fol)r(;aty    il;eii  next,   cxpcution  should  be  ^•^'^'"^'^ 
stayed  (or  the  icsidiic  till  Ihey  could  sue  and  recover  the 
aniouut  froui  tlr  ir  debtors.      Campbell  by  his  answer,  de- 
nied iliat  he  li:ul  promised  not    to   sue.  upon  tlie   bond  as 
tliey  liad  slated  ;  and  as  to  the  promise  <if  his  ai^enl,  de-  ' 

nied  that  he  believed  it  to  fie  true,  beirg  informed  to  the 
contrary  by  his  aj^etif,  \^ho  be  believed  had  s^ixen  bim 
line  inlojinalion  ;  and  he  fnrilier  stated  in  bis  answei-, 
ihat  as  to  the  said  pioniise  staled  to  i)e  made  by  liis  said 
assent,  that  liic  ai;ent  not  bein_!:^  made  a  party  to  the  bill 
had  no  o|)porfuniiy  lo  answer,  but  that  he  had  nr.ide  bis 
aifidavil  coutraiiiclina;  that  part  of  the  bill  wbiih  related 
to  bis  premise,  and  prayed  that  (be  tatne  nii.u;bt  be  taken 
and  received  as  ])ar;  of  bis  answer.  1'liis  allida\it  was 
accordin,:jly  appi-nded  to  the  answer,  and  fully  denied  the 
pioniise  alled^ed  in  the  bill  to  be  made  by  liiiii  lo  the  De- 
fendants at  law. 

vVoorc  lor  the  Defi'iidants,  insisted  that  this  affidavit 
was  c*  ;)ar/e,  and  cotiid  not  be  received  as  part  of  the  (124) 
answer;  and  cited  a  casi-  adjiidsjeii  at  Halif.ix,  where  a 
iniinber  of  iiftidavits  were  annextd  lo  the  answer  tendin;; 
lo  disprove  the  facts  stated  in  the  bill,  and  weie  rejected 
by  the  Court  ;  and  be  if;sis(ed  in  like  manner,  tliat  tiie 
affidavit  annexed  in  tbe  present  case  mi(;ht  not  be    read. 

E  contra — The  counsel  foe  the  Defendant  to  this  bill 
insisted,  that  the  case  at  Halifax  was  not  such  an  oire  us 
oii^bt  to  be  received  as  a  pi'ecedent;  he  remciiibered  liiat; 
case  very  well — that  the  objectioti  Iheie  was  taken  by 
.Mr.  Jluorc — that  tbcre  was  not  ari;imient  on  tlie  oilier 
.side — and  tliat  it  ongbt  to  be  considered  as  a  case,  that 
passed  sub  sUeniio.  He  said  tbe  objeciion  now  t.tkeu, 
of  its  bein;^  ex  parte,  was  not  a  sound  one,  lort'ie  answer 
of  the  Dell  iidani  was  €xp«r/f — there  was  no  cross  ex- 
amination, and  tlie  only  security  for  its  trnth  was  his  be- 

:  liable  to  iirosertition  if  lie  sw.ire  unlrnly.  and  that 
tlieie  was  the  same  security  in  {he  case  of  ibe  iifFnlaNit 
— he  that  makes  it,  is  al>o  liable  to  be  pios.  c  i1  (1  if  he 
swears  nntiuly.  Injuncti'ins  may  be  planted  iiiioii  alhda- 
vita'aken  ex par/e.  I  Eq.  Ca.  M.  S285.  s.  6.  2  /•;(/.  Ca. 
M.  522.  s  2.  14.  s.  2.  It  may  be  also  continued  upon  alii- 
davits  ajtainst  the  answer,  thoufili  that  be  full  and  deny 
all  the  ecpiily  of  the  bill.  3  Will.  Z.jT>.  In  some  rases, 
,ni  injunction  ma}  be  granted  upon  affidavit  only  witbour 
^  bill,  or  before  it  is  tiled.     2  Vcrn.  401,  .G  Ba.  Jib.  175. 


144  Haywood's  uepouts. 

Oct.  1794.  in  whirli  case  it  was  granted  b<fore  bill  filed,  which  un- 
''^'^'''^^  doubti'dly  must  liavc  been  upon  affidavit ;  also,  2  Eq.  Ca. 
M-  527.  If  tliei)  an  injunrtion  may  be  continued  on  affi- 
davits contradicting  the  answer  taken  by  tlie  complainant 
ex  parte,  it  would  seem  to  follow  that  affidavits  contra- 
dicting the  bill  may  be  taken  ex  ■parte  to  dissolve  the  in- 
junction, and  this  is  the  only  use  we  wish  to  make  of  the 
annexed  affiilavit;  and  it  seems  to  be  peculiarly  proper 
in  a  case  circumstanced  like  the  present,  where  it  is  im- 
possible for  the  Defendant  to  give  any  positive  answer 
to  (lie  whole  of  the  bill,  part  of  llie  matter  charged  there- 
in having  been  transacted  with  iiis  agent  in  his  absence, 
and  that  agent  not  made  a  party.  At  tills  rale,  any 
foreigner  may  be  delayed  of  the  fiuiis  of  a  judgment  re- 
covered in  our  Courts  ad  infinitum:  since  they  generally 
obtain  (heir- judgments  by  rbe  agency  of  an  attorney  at 
law,  or  attorney  in  fact  ;  the  Difendant  at  law  then  iias^ 
nothing  more  to  do,  than  to  state  an  agreement  like  that 
stated  in  this  bill,  \vith  the  attorney  for  the  PlaintifT,  ta- 
f  125"^  king  care  not  to  make  him  a  parly,  and  as  the  Plaintiff  at 
^  '  law,  cannot  in  the  nature  of  lliiiigs  say  positively  that  the 
fart  was  not  as  stated,  the  injunction  must  be  continued. 
Besides  wlien  the  debate  is  about  the  continuance  or  dis- 
solution of  an  injunction,  all  that  the  Court  can  enquire 
of,  is,  whether  there  is  enough  to  satisfy  them  appearing 
in  the  cause,  to  say,  thai  thejudgnient  at  law  was  not 
unconscientious;  and  of  this  they  may  he  as  well  satis- 
fied by  hearing  the  affidavits  uf  others  as  the  affidavits, 
of  the  Defendant  himself.  If  the  doctrine  advanced  on -1 
the  otiier  side  be  received  here  as  the  rule  of  a  Court  of ,'. 
equity,  no  injunction  can  ever  be  dissolved  on  the  coming  X, 
in  of  the  answer,  where  the  principal  fact  is  alleged  to^l 
be  transacted  or  promised  l)y  the  Defendant's  agent; 
and  a  bill  in  equity  will  come  to  operate  almost  as  a  bar 
of  the  demand  of  the  PlaintiflFat  law — For  instance,  in 
the  present  case,  can  this  injunction  be  dissolved  at  all 
but  upon  a  hearing  of  the  cause  upon  dcjiositions  being  ta- 
ken, and  the  cause  regularly  set  down  and  iicard  ?  And  j 
It  is  a  well  known  fact,  that  at  this  time  there  area  great 
number  of  bills  now  in  ihl.s  Court,  prior  in  time  to  the 
present  bill,  of  ten  years  standing  and  upwards — the 
I'lainlilTat  law  had  betier  abandon  his  debt  than  be  de- 
layed Hod  vexed  so  long. 

Per  curiam,  Judge  Asue  and  Judge  Wjliiam.s — Th« 
Defendant  here.,   it  is  true^  has  denied  in  jiositivc  teruii 


i 


■Jllfi 


II.WWOOU'S    RliPOUTrf.  145 

lliat  he  agreed  not  to  sue  tliis  Iidik!  ;  but  as  to  (lie  ntl!Ci'0c!.l~9i. 
part  of  tlic  bill,  staliii!^  an  a!;rct'incnt  by  tlie  agent  tlijit  if  •^^~^'~'^^ 
the  Defeuilants  at  Ian  .sJHiuld  earh  pay  lii-i  pi-oporuoii  of 
500  dollars  brfire  Ft-brnary  tlicn  next,  ib;it  exenition 
.should  be  then  siayod  iiiitil  they  coiiltl  collect  tlie  residue, 
of  the  debt  from  thfif  debtofs,  this  he  lias  not  imsitively 
denied  ;  be  says  only,  he  does  not  believe  any  such  a- 
greement  was  made;  and  indexed,  not  bvins;  present  when 
this  judgincnt  was  obtaiiu-d,  he.  lould  not  |iosili\e!y deny 
it — therefore  it  remains  unnei:;alived,  and  ihe  injunction 
must  be.  continui'd.  The  allidavit  annexed,  of  tiie  ajji^nt, 
Mr.  Tatom,  cununt  be  read,  ho  not  beinu;  a  Defendant  to 
this  bill  J  and  indeed  he  coiiM  not  be  made  a  Defendant, 
not  being  interested  in  tlie  jnd.:;nient.  Had  he  been 
made  a  party,  he  might  have  ilisclaimi'd  any  interest  or 
concern  therein,  and  (he  bill  a.s  to  him  wonid  have  been 
dismissed  witli  cosis  ;  and  his  allidavit  cannot  be  receiv- 
ed, bec/ause  it  «as  taken  ex  parte.  an<l  for  want  of  cross 
examination  may  a|'\icar  in  a  diftVrent  dress  now  fiom 
Vihat  it  would  appi  ar  v.ire  he  cross  examined  by  (he 
complainants,  who  might  si;ggest  matters  that  he  would 
recollect,  and  which  I'oi-  «ant  of  such  sn.;::gestion,  ho  fi26") 
might  not  remeinber.  Tiiis  wo  have  decided  o\er  and 
over  again  ;  but    we  will  make  an  order,    that  (lie  unnc- 

gali\ed  fact  shall  be  ti'ied  by  a  jury  at  the  next  term 

Let  the  injunction  be  continued,  and  make  an  oider  for 
the  trial  of  tiiis  fact  at  tho  next  term  ;  wiiich  was  done 
accordingly. 

NoTB. — Tlial  ex  parte  affidavits  cannot  be  received  to  support  an  in- 
1  unction,     ^'ide  Lerouv.  Oickiuson  and  otlievs,  1  Car.  Law  Jleji.4'i7. 

Sears  v.  Parkei". 

tiiv.iits  from  tlie  State  cannot  be  avoided   for  any  cases,   in  any  olliri" 
manner,  th.in  by  proceedings  in  a  Couit  of  equity. 

Ejectment.  Henry  Ensface  McCxdloch  had  a  tract  of 
land  in  the  County  of  Randolph,  the  first  line  of  which 
began  at  a  mat  ked  corner,  thence  a  coiii'se  and  dislancu 
1  ailed  for  in  his  deed,  and  a  second  comer  which  was  al- 
so marked  ;  but  the  distance  fi'(mi  corner  to  corner,  was  ' 
gieater  than  the  distance  mentioned  in  the  tleed  ;  then 
the  deed  railed  for  a  second  line,  mentioning  the  course 
and  distance,  and  a  stake  as  the  point  of  its  teniiinalion 
Jt  was  not  marked,  nor  was  there  any  stake  to  be  found. 
In  like  manner  the  deed  called  for  the  third  and  fourth 
'ines,   describing   their  courses  and   distances,     TiieiC 


14(> 


Haywood's  heports. 


Oct.  1794.  ^yg,,g  „„{  marked.  He  had  also  a  second  tract  adjoining 
^-^""^^^  (liis,  be/^inninj^  at  tlie  stake,  tlic  tliird  corner  of  the  first 
tract,  being  tiic  termination  of  the  second  line  ;  from 
.  theticc  the  course  of  the  said  second  line  of  the  first  ti-act 
was  continued.  The  deed  called  for  a  mai-ked  coi-ner  as 
its  termination,  nhich  was  found  ;  but  at  a  distance  from 
tlie  stake  much  greater  than  tliat  called  for  in  the  deed. 
The  deed  next  called  for  a  line  of  the  same  course  with 
the  third  line  of  the  first  tract,  but  only  half  the  distance 
of  the  said  tiiird  line ;  thence  by  a  line  parallel  to  the 
first  line  of  tlie  second  tract,  calling  for  a  cornei-  at  the 
intersection  of  the  third  line  of  the  first  tract.  Sears 
had  obtained  a  state  grant  for  the  land  adjoining  the  o- 
♦hcr  half  of  the  third  line  of  the  fii-st  tract,  but  the  sur- 
veyors appointed  to  run  those  tracts  of  McCnlloch,  previ- 
ous to  their  being  sold  as  confiscated  land,  had  begun  at 
the  second  corner  of  the  second  tract,  and  had  run  it  by 
courses  and  distances;  they  then  extended  the  second  line 
of  the  first  tract  to  the  third  line  (as  they  surveyed  it^  <>f 
the  second  tract,  being  the  fourth  or  concluding  line  from 
the  beginning  stake  mentioned  in  the  deed.  This  made 
the  distance  of  the  second  line  of  the  first  tract  much 
greater  than  the  distance  called  for  in  the  deed,  and  of 
course  the  thii-d  line  of  the  first  tract  drawn  from  thence, 
would  include  the  land  taken  by  Sears ;  but  if  the  sec- 
ond line  of  the  first  tract  should  terminate  at  the  comple- 
tion of  the  distance  mentioned  in  the  deed,  and  the  third 
line  of  the  first  had  been  run  by  its  course  and  distance 
(127)  from  thence,  then  it  would  leave  out  the  land  taken  by 
Sears. 


B  C  represents  the  course  and  distance  of  the  second 
line  of  the  first  tract.     B  D  represents  the  second  line  of 
the  first  tract,  as  run  by  the  surveyor  to  make  it  adjoin   , 
to  the  line  D  G,  being  the  third  line  of  the  second  tract,  i , 
as  run  by  the  surveyor  by  courses  and  distances  fromtheSl 


Haywood's  reports.  147 

corner  I.  Should  the  tliird  line  of  the  first  tract  be  run  Oct.  1794. 
from  the  point  C,  tlie  distance  and  course  caUcd  for  in  '-^"■''^^ 
the  deed,  it  would  form  the  line  CHE,  and  leave  out 
Senrs's  laud,  l^ina;  between  the  lines  E  H  and  FG;  but 
if  the  distance  of  the  second  line  be  disregarded,  and  that 
be  extended  to  tlie  line  of  G  D  as  laid  <)ff  hy  the  survey- 
or, and  the  third  line  of  (he  first  tract  he  run  from  the 
first  point  D,  then  Senrs's  land  is  included.  The'e  two 
tracts  were  sold  as  confiscated  projierty,  and  were  des- 
cribed in  the  deeds  granted  to  the  purchasers  as  run  by 
the  surveyors,  that  is  to  say — the  first  tract  was  bounded 
by  (he  line  D  F,  and  so  included  Senrs's  l»nd. 

The  Counsel  for  Sears  insisted,  tijat  where  a  deed 
calls  fiir  a  course  and  distance,  and  (here  be  neither  a 
marked  corner  nor  a  iia(ural  boundary  called  for,  that 
the  line  must  of  necessity  sto|)  where  the  distance  called 
for  in  the  deed  is  completed;  and  in  (he  present  case, 
that  is  at  tlie  point  C,  nnci  that  is  the  beginning  corner 
also  of  the  second  tract ;  consequently  the  line  C  E  is  (he 
third  boundary  of  the  first  tract,  and  not  the  line  D  F, 
and  consequently  also  Seurs's  land  is  not  includid  cither 
in  the  first  or  second  tract  oi  McCuUoch. 

E  contra — It  was  argued  by  Mr.  Moore  for  the  Defen 
dant,  tliat  old  surveys  ouglit  to  have  a  reasmiable  allow- 
ance made,  since  in  almost  all  of  them  the  lines  arc  too 
long ;  tlie  first  line  of  the  first  tract  iti  tlie  case  now  be- 
fore us,  is  a  marked  line,  and  too  long ;  if  we  allow  the 
same  measuieiuent  in  the  second  line,  that  proportion  will 
carry  the  second  line  beyond  the  point  C  and  even  to  D, 
and  then  the  land  entered  by  Scars  and  granted  to  hitn  (liJ8) 
by  the  State,  was  not  vacant  land  at  (he  time  of  bis  en- 
try. Secondly,  he  argued,  that  the  deed  granted  by  (lie 
State  to  the  purchaser  of  (his  confiscated  property,  ex- 
pressly included  (he  land  now  contended  for  by  Sears; 
and  supposing  it  to  liave  been  vacant  land,  not  included 
in  either  of  McCuUocli's  tracts,  yet  having  been  granted 
by  the  Sta(e  (o  (he  purchaser  of  (he  confiscated  lands, 
prior  to  Sears's  entiy  and  gian(,  the  Sta(e  could  not  af- 
terwards grant  it  to  him,  and  so  quacunque  via  data,  Se- 
ars is  not  entitled  (o  recover. 

Counsel  for  Scars  in  reply — The  deed  to  the  purciia- 
scr  of  the  confiscated  lands,  expressly  states  that  this 
land  was  sold  as  tiic  land  and  estate  of  Hennj  Eustace 
.M'CiUloeh  confiscated  by  tlie  Legislature  ;  which  makes 
it  evident  that  no  more  was   intended  to  be  conveyed 


148       '  UAVWUOU's    lllil'OUTS. 

Oct.  iTCi.  (|,a„  jjn;  ],j„j  vvhicli  had  been  the  property  of  Henr^ 
'■'^'^^"'^-^  Eustace  .M'CuUnch;  and  iC  by  mistake  or  de8i,9;n  the 
boiiiidarios  liad  bci-ii  exietr.Icd  boyniul  what  his  grant 
covpi-ed,  that  mistaive  was  to  be  leclified  by  the  expiess 
woids  of  the  State  s<"'>'>N  sayin}^  the  State  conveyed  it  as 
his  land  ;  lor  wlietber  it  was  his  land  or  not  was  to  be 
ascertained  only  by  his  gi'ant,  not  by  the  description  of 
the  State  i^tant  to  the  puiThaser ;  and  upon  inspection 
o\'  JPCulloch's  deed,  and  by  running  tlie  land  described 
thi'fein  by  course  and  distance,  where  there  is  no  mark- 
ed line,  we  are  ascertained  that  the  land  now  riainicd 
by  Sears,  is  not  any  part  of  the  lands  formerly  j^ranted 
to  Jil'CnUoch,  and  as  his  to  the  ptircliaser  <if  It  as  confis- 
cated. Moreover  the  laws  of  this  Slate  save  aiitiiority 
10  the  Commissioners  of  confiscation  to  sell  only  such 
lands  as  had  been  appropriated,  and  belonj^ed.  and  were 
le.ijally  st  cured  to  sui  h  persons  as  had  incui'red  the  pen- 
alty of  confiscation,  not  those  lands  that  wcie  vacant 
and  never  had  been  appropriatetl  individually — for  he  dis- 
posal of  these,  other  officers  were  ajtpoinicd  under  the 
laws,  for  enterin.:;  vacant  and  unappiopriated  lands. 
The  officers  appointed  to  dispose  and  make  conveyances 
for  these  several  descriptions  of  land  confiscated,  and  va- 
cant lands,  were  in  the  nature  of  altoinies  constituted 
by  individuals,  to  sell  lands  for  their  |)rincipals  ;  with 
reg^ard  to  whuni  it  was  a  well  known  rule  of  law,  that 
if  the  attorney  exceeded  his  powers,  wliatever  he  did  be- 
yond them  was  void,  as  being  done  vvitliout  authority. 
Sujtjjose  an  individual  appoints  two  attornies,  one  to  sell 
one  tract,  and  another  to  sell  anoilirr  tract  adjoining; 
and  the  fii'St  sells  the  tract  he  was  empowered  to  sell, 
and  part  of  the  adjoining  tract,  which  ilie  other  only 
(129)  was  empowered  to  sell — surely  the  sale  would  be  void 
as  to  such  part  of  the  second  tract  as  he  had  not  been 
authorized  to  dispose  of.  So  here,  the  Commissioners 
of  conliscalioii  were  empowered  to  .'-ell  Jil'Cullock's  tract, 
the  Entry-taker  for  the  County  ()f  Randoljih,  is  empow- 
ered to  sell  the  vacant  and  unappropriated  land  adjoin- 
ing ;  and  is  not  the  .sale  of  this  vacant  land  made  l)y  the 
Commissioner  void,  as  having  no  power  to  intermeddle 
with  it  F  If  not,  I  would  be  glad  to  know,  for  I  cannot 
with  my  iitmostexcrtioti  discover  the  distinguishing  mark 
that  ditfers  the  case  of  these  oOicers  from  that  of  tiie  at- 
tornies of  Individuals.  It  seems  to  me,  the  rule  of  law 
is  the  same  in  both  cases,  and  ought  to  be  adhered  to  in 


HAYWOOn's    REPORTS.  149 

the  present  rase,  more  espctially  as  tlie  Entry-tiiker,  the  Oct.  1794. 
proper  offirer,  Imving  lawful  authority  to  kcII  has  execu-  <^~''"^-' 
ted  his  power  by  recciviti.a^  the  purchase  moiify  for  the 
public,  and  issuio:;  his  Avarraiit  for  tlie  surxpyiot^  iliis 
vacant  land  for  the  purchaser  Sears,  acroidiMi:;  to  the 
laws  of  the  country.  It  lia«  been  hinted  by  the  Counsel 
for  the  Deleiidant,  ami  indeed  it  must  be  a(kiM)wli(l,c;ed, 
that  the  ('curt  in  some  instances  foi'tneriy  have  decided, 
that  a  State  deid  cantn)t  be  a\oided  either  in  all  or  in 
pai't.  upon  evi<icnce  on  a  trial  in  cjectnienl,  for  the  dan- 
ger that  would  ensue  to  pui'chasers  if  their  deeds  conid 
be  avoided  by  pai-ol  evidence  given  to  a  jniy. — With 
great  defei-eiice  to  the  Counsel  on  the  other  side,  and  to 
the  former  opinions  of  the  Cnnrt,  I  must  say,  that  I  have 
consi<lered  of  this  jiosition  with  tlie  nn)St  anxious  atten- 
tion, an^  viewed  it  in  every  light  which  my  imagination 
could  place  it  in,  and  1  could  never  attain  l<i  any  view 
of  the  subject  that  could  give  it  the  appearance  of  consis- 
tence with  tlie  rules  of  law.  Suppose  a  Cominissioiier 
of  confiscated  property,  or  an  Entry-taker',  had  sold  to 
A.  who  paid  the  purchase  money,  and  tlie  Governor  and 
Secretary  by  mistake  had  made  out  and  executed  a  state 
grant  to  B.  and  afterwards  had  made  out  and  executed 
a  deed  to  A.  shall  not  A.  be  sulferd  to  shew  this  mistake 
ujion  a  trial  in  an  ejectment  brtuight  against  B.  to  recov- 
er tlie  land  ?  Suppose  the  Governor  and  Secretary  had 
been  deceived  into  this  measuce  by  Crauilulent  and  false 
representations  of  B.  shall  not  this  fi'aud  be  shown  upon 
a  (rial  in  ejectment,  and  tlie  deed  to  B.  avoided  ?  Siij)- 
pnse  the  warrant  of  survey  as  made  by  the  proijoi-  En- 
try-laker, the  certificate  of  survey,  and  the  plat  an- 
nexed shall  be  falsely  made  out  and  leturned  to  the 
Secretary's  oflice,  and  by  that  means  a  grant  piocurcd 
in  the  narne  of  the  forger,  or  any  ntiier  person,  to  tlie 
prejudice  of  a  fair  puichaser  who  afterwards  obiiiinshis  (iqq\ 
grant,  shall  he  not  be  suft'cred  to  prove  ail  this  upon  a 
trial  in  ejectment?  It  is  argued,  that  this  must  b»-  done 
in  a  Court  of  crpiity — b^t  wliy  ?  1  apprehend  this  doc- 
trine is  grounded  u]ion  a  mistake  of  what  is  said  in  ma- 
ny books  respecting  the  powers  of  a  Court  of  Chancery 
to  repeal  letieis  patent  improjierly  gianled,  or  obtained 
upon  misiejiresentati.on  or  deception.  If  we  atfenil  to 
the  dift'erent  construction  of  the  Court  of  Chancery 
in  England,  and  of  our  own  Court  of  equity  in  this  coun- 
try, the  mistake  will  be  discovered.    The  Court  of  Chan- 


150  HAYWOOD'S    REPORTS. 

Oct.  1794.  coiy  in  Eiiclanil  exccrciscs  a  rqnimon  Vaw  jurisdictioB 
'*^'"*'""'*-'  uith  respect  to  (he  repeal  of  lctt#i-s  patent,  and  also  an 
ecjiiity  juiisdiclion  altogetlier  (listiMCt  from  that,  upon  a 
bill  lilcd  liir  ihat  purpose.  Their  jurisdiction  with  i-c- 
sjiecl  to  the  re|)eal  <>f  letters  patent  i$  limited, and  directed 
Ity  the  Keltle<I  and  known  rules  of  the  common  law. 
3  lil.  Com.  *7,  261.  Now  our  Court  of  equity  is  not 
vested  with  this  power-,  it  possesses  only  all  the  powers 
and  authorities  witliin  its  district,  that  the  Court  of 
Ciiancery,  formerly  held  in  this  State  under  the  laic  gov- 
ernniiiil,  used  and  exeirised.  and  that  are  i)r()pcrly  and 
rightfully  incident  to  such  a  Court,  agreeahly  to  the  laws  T" 
in  force  in  thi*  State,  and  not  inconsistent  with  our  pre- 
sent constitution  ;  provided  no  final  decree  shall  he  pass- 
ed by  such  Court,  hut  where  two  of  the  Judges  at  least  i 
arc  present.  1782.  ch.  11.  s.  2.  This  vests  in  the  i 
Court  of  equity  here  such  powers,  and  these  only  as  the  J 
Court  of  Chancery  in  England  exercises  on  the  equity  I 
side  of  (lie  Court.  All  the  subs"qut'nt  paris  of  the  act 
cited,  are  directed  and  confined  lo  process,  powers  and 
jji'occedings  tliat  were  used  on  that  side  of  the  C<iurt  of 
Clwinccry  in  England,  and  speaks  of  none  others.  So 
that  the  whole  texture  of  our  act  shews,  that  our  Courts 
of  equity  are  empowered  to  jirocced  by  hill,  not  by  sci. 
ffi.  The  Court  of  Chancery  in  Etigland,  on  the  equity 
side,  also  proceeds  by  bill,  answer  and  depositions ;  but 
on  the  law  side,  and  so  far  as  regards  the  repeal  of  let- 
ters patent,  it  proceeds  according  to  the  rule  of  the  com- 
mem  law.  3  Bl.  Com.  47,  49.  Wood's  Inst.  479.  4 
Inst.  79  ^0  81.  1  67)-.  146.  1  Eq.  Ca.  Jib.  127.  and  this 
jiower  has  ne>ei-  yet  been  vested,  by  any  act  of  the  Le- 
gislature in  our  Couit  of  equity.  It  has  no  power 
therefore  to  proceed  by  sci.  fa.  to  repeal  the  grants  of 
the  Slate,  as  the  Court  of  Chancery  in  England  hat|>. 
The  name  reasons  w hich  lendcrd  it  proper  there,  that  the 
Chancery  should  exercise  that  power,  do  not  by  any 
r^Q.\  means  apjdy  here.  The  Chancellor  has  the  possession  j^ 
^  'of  the  great  seal,  which  is  necessary  to  give  validity  to  v^ 
these  grants,  and  the  records  of  them  are  preserved  in 
his  custody,  and  he  lor  the  n)ost  part  knowing  the  sue; 
geslionsn|)on  which  the  grants  issued,  he  is  the  proper  offi- 
cer (h.  lefore  to  be  entrusted  with  the  charge  of  detecting 
mistakes  and  rectil^iug  them — he  can  perform  this  task 
with  more  efToct  than  any  other,  and  he  can  vacate  the 
record  of  the  grants  improperly  issued,  these  records 


HAYWOOD  S    KEI'OUrS. 


151 


being  witliin  liis  iminciliate  power;  butwiuit  would  be  tlic^^''  ^''5''- 
consequence  of  an  attempt  on  tlie.  part  of  one   Court  of  *-*'~''''**^ 
equity  to  exercise  t!iis  power?  Can  this  Court  jjovern  it- 
self by  the  rules  of  the.  Court  of  Chancci'y   in   Eiit^land, 
when  [)roceecliiij;  wilh  (he  same,  object  in  view?  If  their 

I  niles  will  not  apply  here,  then  our  Court  must  either 
frame  new  ones,  which  1  apprehend  it  has  no  authority 
to  do,  or  must  relinquish  its  jurisdiction  entiiely.  The 
Chancellor  in  England   issues  his  sci.Ja.  returnable  ci- 

I  ther  hefoie  him  in  his  Court  of  Chancery,  or  into  the 
King's  Bench  ;  when  returnable  before  himself,  the  par- 
ty eitiier  snfliVrs  judgment  by  default,  or  demurs,  or  takes 
issue;  in  the  two  lorracr  case.';,  the  Chancellor  gives 
judgment;  in  the  latter,  he  sends  the  issue  into  the 
King's  Bench  to  be  tried.  Dyer  197.  1  Jlod.  27.  Latch.  S. 
3  Lev.  220.  Cro.  Jac.  12.  6  JIo.  Hep.  229.  4  //is/.  72.  80. 
There  is  no  bill  filed  against  the  Defendant,  he  is  not  re- 
quired to  answer  on  oath  and  discover;  the  issue  is  tried 
upon  evidence  as  other  common  law  issues  are.  How- 
will  our  Court  of  equity  proceed — will  it  issue  a  set.  fa. 

',  and  send  the  issue  to  thcniseUes,  to  be  tried  before  them- 
selves as  common  law  Judges  by  a  jury  ?  What  need  of 
all  this  circuity?  Or  will  they  proceed  by  bill,  answer 
and  deposition,  leaving  the  chancery  course  of  proceed-  ^ 

iiig  and  mode  of  trial  altogether?     Tiiis  will  be  entirely 
new,  and  the  first  [necedent  either  here,  or  in  England, 

I  from  whence  our  laws  are  borrowed.  If  we  proceed  by 
pleading  to  the  sci.J'u.  and  making  up  an  issue,  canmit  a 
jury  upon  the  trial  of  an  ejectment,  under  the  direction  of 
tiie  Court,  do  thesame  law  and  justice  as  if  ;hcy  tried  it  up- 
on an  issue  made  up  in  the  pleadings  to  a  sci.Ja?  And  after 
all,  will  not  the  evidence  upon  this  issue  be  parol  evidence, 
to  shew  the  mistake,  misrepresentation  or  deception  in 
the  same  manner  precisely  as  upon  the  trial  of  an  eject - 
raent?  Where  is  the  evil  avoided  then,  or  the  advantage 
attained,  by  trying  it  upon  a  sd.  fa.  that  may 
not  be  equally  avoided  oV  attained  by  trial  in  eject- 
ment ?  The  usual  and  oidinaiy  mclhoil  observed  in 
England,  is  for  the  party  injured  to  apply  by  jietition  to 
the  King,  for  leave  to  use  his  name  for  repealing  the  letters 
patent.  3  Bl.  Com.  261.  This  perhaps  may  not  be  ab- 
solutely necessarj',  but  if  it  be,  who  is  to  give  that  leave 
here?  Has  tin-  State  thought  jnoper  to  vest  that  power 
any  where?  If  the  injured  party  can  institute  process 
without  any  leave,  then  why  not  institute  an  ejectment 
as  well  as  a  bill  in  equity?     Where  is  the  law  *d'  the 


(132) 


152  UAY wood's  ueports. 

Oct.  1794. country,  or  any  sriiitilla  of  Ie,e;al  rPARon,  to  tletermine  to 
'-^~'''^*^  the  latter  rather  than  tlio  former ?  The  foiin  ofilie  judg- 
mrnt  on  a  sci./a.  in  England  is.  ^iwd  predicta;  litcrce  pa- 
tentcs  dkli  Domini  Re.^s  ri'vocentur,  cnvcellentnr,  evncuen- 
tur,  adtmilentur,  et  vacuce  et  invalidce  pro  nnllo  pcnUiis 
Iiabeantur,  et  teneantur,  ac  etiam  quod  irrotulamenhim  eor- 
nndem  cancelletur,  aisselur  et  adnikiletur,^'c.  and  tiien  the 
Chancellor  damns  tiie  enrolment  tlierenf,  by  drawiiii; 
strokes  tlirnii.a;li  it  like  a  lailice,  4  Inst.  88,  and  f>r  this 
l)Uipose  tiie  letters  patent  themselves  are  recalled  into 
the  place  from  vv  hence  they  issued,  that  is,  into  the  chan- 
cery, that  they  may  be  cancelled.  1  Sim.  151,  8  Rep. 
31,   55. 

The  judgment  in  the  ejectment  will  indeed  only  be, 
that  the  Plaintiff  recover,  svithout  saying  that  the  patent 
shall  be  recalled,  and  that  together  vviili  the  enrolment  in 
the  Secretary's  otlice,  cancelled.  But  can  the  Court  of 
equity  say  this  in  their  decree?  I  believe  tlierc  is  no 
precedent  of  such  a  decree  having  ever  been  pronounced 
by  any  Court  of  equity  or  chancery  tiiat  ever  set  in  tliiK 
country;  if  there  has  been  any  such,  \vc  have  a  riglit  to 
challenge  tlie  production  of  it.  Indeed  cases  may  exist, 
where  a  Court  of  equity,  proceeding  by  bill  and  answer. 
uoul<l  be  found  totally  incompetent  to  alTord  any  relief. 
Suppose  the  patent  be  obtained  by  some  fi-aud  or  deceit, 
that  would  subject  the  patentee  to  a  forfeiture,  or  to  h 
criminal  prosecution  ;  if  it  be  obtained,  for  instance,  by 
means  of  a  forgei'y,  of  a  warrant  of  survey  and  return, 
as  before  suggested,  or  be  transmitted  to  the  Secretary 
by  fraud  betwien  the  Entry-taker  and  |)atentee,  to  the. 
prejudice  of  a  third  person,  shall  he  file  liis  bill  against 
them,  and  compel  the  Defendants  to  answer  to  ihc  fraud 
rtr  to  the  forgery  charged  ujion  them  ?  Shall  tliey  be 
compelltd  to  subject  themselves  to  forfeiture  or  punish- 
tnent  i  And  if  they  shall  not  be  compelled  to  answer, 
what  advantage  is  there  in  |>roceeding  by  this  mode,  ra- 
ther than  lliat  of  an  ejectment  ?  Nay,  more — if  he  is  not 
compellable  to  answer,  the  Plaintiff's  bill  must  be  dis- 
missed. This  Cr)urt  will  find  itself  incompetent  to  af 
ford  redress,  in  the  most  gross  and  tl:<grant  instances  ol 
frauil,  and  the  party  injured  must  eitlier  be  permitted  to 
(133)  gpeij^  j,„(j  „(,(aiti  his  remedy  at  law,  or  remain  williuut 
any  remedy  at  all  ;  and  if  suffered  to  proceed  at  law,  he 
mu.si  do  that  by  some  other  means  than  that  of  a  set.  fa. 
to  repeal  the  grant ;  for  the  Supreme  Courts  of  law  iu 


Haywood's  uepouts.  153 

this  country,  can  only  exercise  sucli  {lowrrs  as  wei-c  ex-  *^°*'  ^''^•^• 
ercised  by  tlie  foi-incr  JiKl,a;i'S  in  this  country  bifDrc  tlie  '"^'^'^^^^ 
revolution,  or  more  proiterly  speakitia;,  (hey  cannot  ex- 
ercise grealei-,  1777,  c.  2,  s.  2,  ;in'i  the  Suj)cr'ior  Courts 
ifi  this  country  could  never  exeri  ise  t^reater  powers  at 
any  time,  than  the.  Judges  of  the  Kin_£;'.s  Bench  in  En- 
gland, 1768,  c.  1,  S.  2,  except  in  some  few  instances  upon 
suhjects  of  ecclesiastical  jurisdiction  expressly  subiiiit.eil 
to  their  coi?tii7,ance.  And  the  Rinsf's  Bench  onij  pro- 
ceeded upon  llir  issue  joined  in  a  sci.fa.  tn  repeal  lellei's 
■pHtent,  x\lien  it  was  sent  lo  ihein  tVoin  the  Peliy  B;!-:;  in 
chancery.  1  Mo.  29,  Latch  3,  4  Inst.  SO.  Altlioiinjh  it 
must  be  acknowledged,  Ihc  contrary  scpms  to  be  implied 
infatiiur  of  the  orit^iuiil  Jurisdiction  of  ihit  Court,  in  6 
Mo.  229,  and  4  Inst.  72.  But  however  this  may  be,  all 
the  aniliorities  ujion  the  subject  disjirove  the  pnsiti  in  that 
the  Court  of  equity  can  proceed  to  the  repeal  of  public, 
grants;  and  slsould  iit  be  admitted  that  the  sci.  fa.  for 
that  purpose,  may  be  made  returnable  in  the  first  in- 
stance before  the  Court  of  Kins^'s  Bench,  yet  it^is  to  be 
doubted  wheilier  the  Cliancfllor  must  not  rendci'  the  jud^- 
Uicht  iiirnself,  upon  thi-  proceedin.u;s  returuid  in  the  Pctiy 
Baj;,  when  ri|ie  lor  .judf;ment.  4  Inst.  7!i,  SO,  8j,  294. 
Notwithstanditiu;  some  contrary  adjudications  and  the 
opinion  of  Mr.  Justice  Blitckstone  in  his  3  Com.  ^-S,  Cro. 
■Jac.  12,  1  Mo.  29,  Ltttch  ',  and  if,  by  the  i-ules  of  law,  he 
is  to  render  the  iud.e;ment  on  the  law  hide  of  the  chance- 
ry, then  it  will  also  follow  that  as  there  is  no  Court  In 
this  countiy  vested  with  an  authority  similar  to  that  oC 
the  Chancellor  in  tlie  IVtty  B^iaj,  there  is  none  tiiat  can 
give  llic  nccessiiry  judgment  after  tlie  institution  of  the 
sci.fa.  ami  tiial  upon  it.  If  on  the  other  hand,  sudii 
judi^inent  maybe  rendered  in  theConrt  of  King's  Bench, 
and  conse(picnilj  hj' the  wording  (»ur  acts  of  Assembly 
before  cited,  by  the  Superior  Courts  nf  this  country,  it 
will  still  remain  true,  that  the  Court  of  equity  cannot  in- 
terfere. And  then  a  further  enquiry  will  be,  whetlier 
the  Superior  Cmirt  of  law  cannot  as  well  receive  evi- 
dence of  the  invalidity  of  the  grant,  upon  a  trial  in  eje<ft- 
ment,  as  upon  the  issue  joined  in  a  sci.  fa.  to  repeal  it ; 
as  to  \vhi(  h  the  rule  seems  to  be  this,  (hat  when  the  grant 
has  issued  under  such  <:ircumstarices  as  reirders  it  vtnd,  C^^"*) 
for  fraud,  misrepresentation,  decepiion  or  the  like,  the 
^mrty  injured  may  cither  proceed  to  have  it  i-ecalled  and 
cancelled,  (2  Bl.  Com.  348,  Freeman  172,)  or  he  may  pro- 
20 


194  haywood's  reports. 

Oct.  1794.  cecj  ^0  avoid  the  effects  of  the  gi-aiit,  by  i-ccovering  tl»e 
y^""^^*^  proppi-ty  or  right  invaded  by  it,  notwitlistaiidiiig  the 
grant,  by  such  action  as  suits  liis  case.  S  Lev.  220,  5 
JVeZs.  ^6.  202,  s.  14,  4  Bac.  M.  416.  The  reason  why 
tliey  are  somctinifs  and  indeed  frequently  recalled  and 
cancelled  by  sci,  fa.  as  I  ai)])rehend.  is,  that  they  may 
not  be  set  up  to  the  prejudice  of  the  injured  party,  after 
the  evidence  to  prove  the  circumstances  that  would  inva- 
lidate them  hath  been  lost.  But  in  point  of  law,  they 
arc  equally  invalid  and  void  when  granted  by  mistake 
and  upoti  deception,  either  in  matter  of  factor  of  law,  us 
in  case  of  false  suggestion,  misrepresentation  or  misrcci- 
tal  of  former  grants,  of  the  interest  of  the  grantor  and 
the  like,  hefor-e  as  they  are  after  the  judgment  of  cancel- 
lation is  pronounced.  3  Term  Rep.  242,  2  lU.  Com.  348. 
And  these  circumstances  of  invalidity  may  be  shesvn  be- 
fore that  rejieal,  in  evei-y  possible  action  suiting  the  case 
of  the  party  aggrieved,  in  whicii  the  point  of  invalidity 
can  be  brought  before  tiie  Court  ;  a!>  in  assize  of  nui- 
sance, quod  pcrmiliaf.  information  in  the  nature  cil  intru- 
sion, trespass,  ejectnieni ;  for  whicli  I  beg  leave  to  cite 
5  Itep.  94,  6  Rep.  5G.  1  Rep.  52,  10  Rep.  G",  b.  and  par- 
ticularly 2  Re;).  17.  33,  54,  ^,0  Rep.  109,  which,  are  cases 
in  ejectment,  in  which  the  invalidity  of  tiie  King's  srants 
■were  expressly  decided  ;  and  prove  beyond  contradiction 
that  the  effects  of  an  invalid  grant  may  be  avoided  by 
proof  of  the  circumstances  that  i-ender  them  invalid  upon 
the  trial  of  the  issue  joined  in  tliat  action.  In  the  last  of 
them  it  was  decided  that  the  grantee  shall  not  he  permit- 
ted to  claim  by  any  other  title,  than  that  e.\pressed  in  tlie 
graut  itself;  and  that  if  the  King  grants  the  manor  ofj 
I),  expressing  in  (he  patent  that  the  said  manor  camci 
to  his  hands  by  escheat,  and  iu  truth  it  did  not  come  hyi 
escheat,  the  grant  is  void,  because  of  the  falsity  of  tbej 
suggestion,  which  shews  him  to  Inne  been  deceived  at  the 
time.  Tliese  cases  are  fully  up  to  both  points  we  wi.shj 
to  establish,  namely,  that  the  invalidity  of  the  grant  may 
be  shewn  in  the  (jectment,  and  also  that  a  public  oflici^tl 
granting  land  as  tiie  agent  of  the  (Mimn)unity,  bclieviuj^ 
the  title  of  the  community  to  have  come  l;y  one  means, 
by  means  of  confiscation  for  instance,  when  in  irutli  rl 
came  by  another,  which  if  he  had  been  apprized  of,  hi 
(135)  would  not  and  ought  not  to  have  executed  the  grant,  doifl 
not  thereby  convey  any  property  to  the  grantee  ;  and  iqi 
therefore  hope,  that  the  objection  taken  on  the  other  sMi 


Haywood's  reports.  ^  1S5 

v» ill  not  prevail.  One  other  argument  Iiiiited  at  in  the  Oct  1794. 
course  of  the  debate,  and  perhaps  it  fell  from  the  Court,  '-'"""^^ 
seems  pcoper  to  be  attended  to — that  tlie  State  having 
grante<),  if  it  weie  imposed  upon  in  the  ,s;rant,  only  has 
the  right  to  institute  process  for  its  repeal.  If\\e[)ro- 
ceed  by  analogy  to  the  sci.fa.  in  England,  tliis  is  not  so. 
The  King  in  his  own  name,  or  any  private  person  using 
liis  name,  may  institute  this  process  to  remove  out  of  the 
way,  a  giant  |)rejudicial  to  his  interest.  4  Bac.M. 41Q, 
3  Bl.  Com.  261,  6  Mo.  Rep.  2^9.  So  that  altho'  ilie  State 
may  never  think  proper  to  procceil  in  this  case,  yet  Sears 
may  institute  the  sci.fa.  if  it  will  lie  in  our  Courts,  and 
by  the  same  reason  may  take  advantage  of  tiic  invalidity 
-  obliquely  in  this  trial  vviiliout  any  sci.fa. 

Per  curiam,  Judge  Ashe  and  Judge  Williams — We 
have  often  decided,  and  we  are  now  of  opinion,  that  the 
Stale  having  granted  varant  lands,  the  first  patentee  will 
be  entitled  to  hold  them,  rnttvvithstanding  any  attendant 
circumstances  that  render  it  voidable,  until  it  be  actually 
avoided  in  the  Court  of  equity;  and  that  it  cannot  he 
avoided  by  any  parol  evidence  given  to  a  Jury  on  a  trial 
in  ejectment,  but  the  jury  may  find  a  special  verdict  if 
they  please,  subject  as  to  this  point  to  the  opinion  of  the 
Court. — But  the  jury  did  not  agree,  atid  one  of  them  was 
withdrawn. 

Afterwards,  at  a  subsequent  term,  tlie  Court  holding 
the  same  doctrine,  there  was  a  verdict  and  judgment  for 
the  Defendant. 
NoTE.-Vide  Jieynoldsv.  Flinn,  k.  tlie  references  in  ttie  note  a«/elO0. 

HALIFAX,  OCTOBER  TERM,  1794. 
Wilson  Carter  v.  John  Branch. 

A  dcclaiation  in  ejectment  served  on  a  tenant  in  possession,  cannot 
be  amended,  so  as  to  comprise  more  lands  than  those  already  de- 
scribed.— TtTe  Defendant  in  an  ejectment  will  not  be  allowed  to  de- 
fend only  as  to  so  much  as  the  I'laintilFcan  piuve  him  in  possession 
of. 

Ejectment,  The  Plaintiff  by*  his  attorney,  moved  to 
I  amend  the  declaration,  so  as  to  comprehend  more  lands 
than  were  described  in  the  declaration  served  on  tiie  ten- 
ant in  possession.  The  tenant  in  possession  moved 
iat  the  same  time,  to  be  admitted  to  defend  only  as  to  so 
|mucli  of  the  premises  as  the  Plaintiff  could  prove  him  to 
ibe  in  possession  of,  alledgiug  that  the  locality  of  a  line 


15^  Haywood's  keports. 

on.  1794.^3^  the  maUi'i- (if  roiilroversy  ;  whicli  if  it  ran  wlieio 
'''*'~*''"**^  he,  the  Dtfiiiil;uit,  (Oiiloiidcil  it  did,  he  was  not  in  pos- 
session of  any  |>iut  of  llie  |iieiiiises;  if  wliere  tlic  Fluin- 
tlfTconlendid,  lu-  was  (Ijimi  in  possession  of  a  small  part 
only  :  but  if  lie  eritei'i-d  inio  tlio  coinnion  rule  generally, 
that  would  be  claimitii;  upon  <he  record  the  wh>i|e  lands  de- 
(136)  scribed  in  the  declaration,  lo  any  pail  ol  which  he  had 
no  claim:  and  if  he  entered  iiiiiise-lf  Defendant  for  such 
of  the  premises  as  lay  bttwcen  the  line  claimed  by  tlie 
Plaintiff,  and  that  whicli  lie  contendrd  lo  be  the  true 
line,  this  would  be  an  admission  that  the  lands  so  defen- 
ded for,  were  a  part  of  liiose  described  in  tlic  declai-atlon, 
which  he  by  no  means  meant  lo  admit. — Aj^ainst  tiie 
Plaintiff's  motion,  llic  Coniisol  foi-  the  Defendant  argued, 
that  no  original  process  could  be  amended,  there  being 
nothing  to  amend  by ;  and  Ihat  a  declaration  in  eject- 
ment had  always  been  considered  as  an  original  |)rocess, 
and  tliercfore  not  amendable;  and  ho  cited  2  Stra.  121. 
Cartli.  ITS.  2  Burnes  13,  17,  154.  Carlli.  401.^  5  Mo. 
332,  and  ili(uigh  a  case  had  occnied,  where  the  Court 
had  jieiinitted  tlie  time  laid  in  the  demise  to  be  extended, 
as  ie)iorted  in  4  Burr.  2448,  2449,  yet  that  was  matter 
(if  form  only,  and  allowed  to  avoid  tlie  total  bar  of  the 
Plaintiff's  title  by  the  statute  of  fine  and  non  claim, 
vhich  would  ha\e  attached  u|iuii  it  had  liie  amendment 
not  been  made,  and  Ihi-  Plaintiff  non-suited  and  put  to 
commence  a  new  action — but  no  case  had  ever  happened, 
where  an  anicndnient  in  the  description  of  the  thing  de- 
manded, had  ever  been  allowed  in  a  declaration  in  eject- 
ment, but  the  same  had  been  expressly  denied  in  the 
case  of  Thompsun  v.  Leach,  cited  in  5  Mo.  334. 

Judge  Macay — The  amendment  moved  for  cannot  be 
allowed,  for  that  would  be  lo  make  a  new  declaration. 

The  other  motion  was  then  urged  by  the  Counsel  for 
the  Defmdanl,  and  Judge  jNIacay  asked  if  there  were 
any  precedent,  to  justify  an  admission  to  defend  in  that 
manner,  when  the  Counsel  for  the  Defendant  cited  the 
case  stated  in  Bull.  97.  and  2  Bac.  M.  162.  Barn.  Snpp. 
24,  25.  2  Bam.  148.  Where  in  case  of  several  tenants, 
the  rule  may  be  draw n  generally,  tiial  I.  II.  who  claims 
title  to  Ihe  premises  in  (juestion  in  his  possession,  shall 
be  admitted  Defendant  for  sucii  messuages ;  and  then 
Plainiiff  must  prove  what  lands  are  in  his  posstssion— 
or  specially,  that  I.  11.  who  claims  title  to  sue  h  lunds^ 
expressing  them  particularly,  should  be  udmitled  Defen* 


Haywood's  ueports.  157 

tiaiit,  iind  then  the  Plaintiff  need  not  make  such  proof.  Oot.  I79i. 
And  he  insisted,  that  in  the  present  case,   there   was    as  ^-'^^''^'^ 
much  reason  for  admiitilig  the  Defendant  in  the  iiiannei* 
first  stated,  as  in  llie  rase  wheic   tlierc  are  several  tc^n-    • 
ants,  since  the  tenant  in   the  present  case,  cnnld  not  de- 
fend Kiherwise,  without  makinij  an  admission  of  the   fact 
lie  |)i-inci|ially  intended  to  controvert. 

Judge  Macay — There  is  no  precedent  for  such  a  nio-  (137) 
tion  as  this,  and  tiierefore  I  caiimit  consent  to  it.  Tlic 
Defendant  must  enter  his  defence  as  he  thinks  proper; 
but  I  think  tiie  j)ro|>()sal  made  by  tiic  Plaintiff's  Counsel  a 
fair  one,  and  fit  to  be  accecded  to,  namely,  tliat  when  the 
lands  sliall  be  run  out  by  the  snrveyoi-,  if  the  survey 
should  include  tlie  lands  claimed  bs  the  Defiinhuii,  that 
then  he  shall  be  at  lilK'rty  to  enter  himself  Defendant  for 
as  much  of  the  lands  claimed  by  him  as  sliouid  he  inclu- 
ded in  the  survey,  particularizing  them — and  1  would  re- 
commend the  adop'ion  of  it. 

This  apjiearcd  to  the  DefendaMt's  Counsel,  to  be  stiM  an 
admissiiin  that  these  lands  were  a  part  of  the  premises 
described  in  the  Plaintiff's  declaration,  us  he  must  still 
enter  himself  Defendant  for  a  pai'l  of  the  said  premises 
in  the  declaration  menti(Mied,  to  wit,  that  part  to  be  so 
described — wherCrtS  liis  objection  was  not  that  the  lands 
described  in  the  declaration  were  not.lhe  Plaintiff's,  for 
lie  admitted  them  to  be  so,  but  that  the  boundaries  in  the 
declarati(Mi  did  not  comprise  ihe  lands  whii  h  thi'  Defen- 
dant claimed. —  Bnt  the  opinion  of  the  Coui-t  being 
against  him,  he  was  obliged  to  accejitof  the  proposal  re- 
commended to  him. 

Note. — As  to  tlie  amemlment  vide  Troxier  v.  Qihsnn,  post  465 — But 
see  note  to  Cawper  v.  ICdwurtls,  ante  19,  and  ^dams  on  ejectment  205. 
—Upon  tlie  other  points  see  Jidama  on  ejictnient  2.)4,  2j5. 

Brickell  v.  Bass. 

Tlie  neglect  of  bringing  up  an  appeal  nnder  tlie  act  of  1777,  liev.  cJi, 
115i  s-  77,  in  proper  time,  is  not  r.:lievable  by  certiorari,  although 
occa.sioned  by  the  neglect  of  the  Clerk;  and  the  appellee  may 
move  for  the  afllrniance  of  the  judgment  with  ilouble  costs,  either  at 
the  first  or  any  other  term,  :.ft(r  the  appeal. 

This  was  an  appeal  in  an  ejcctuicnt  cause  from  the 
County  Court  of  Nash.  The. jury  below  had  found  for 
the  Defenilant — and  tlic  appeal  was  returnable  to  this 
Court  in  October  term,  1793.  It  was  not  tiien  transmit- 
ted to  the  Clerk  of  this  Court,  hut  in  April,  1794.    The 


158  iiaywood's  beforts. 

Oct.  ir94  Counsel  fin-  Hie  Defendant  havint^  a  ca|>y  of  tlie  record 
""*^'*''^^  in  Ills  liiiiid,  moved  to  have  it  entered  of  record  in  tliii? 
Coiiit,  ami  till'  judgment  iiffirniid  with  double  rosts, 
iigreiably  to  tin-  act  of  1777,  ch,  Z,  sec.  84.  The  Coun- 
sel for  the  IMaintilT  then  ninvcd  fir  time  to  procure 
an  !>ffida»if  for  rem()viMg  tlic  cause  by  certiorari, 
alledgin;;  the  ritglect  of  the  Clerk  of  the  County 
Court,  who  had  been  applied  lo  in  time  and  failed  io  give 
a  transrriiit  of  the  record  :  and  imw'  at  this  term,  the  mo- 
tion for  affirming  tlie  judgment  was  renewed  and  the 
affidavit  fnr  the  certiorari  |irodiirtd.  It  stated  that  this 
cause  was  ti'ied  in  May,  1793  ;  and  tliat  in  August,  1793. 
JBrickell's  attorney  had  declined  practi'c  in  that  Court; 
hut  had  applied  by  .Vr. //«//,  the  attorney  left  t>  finish 
his  b<;sincss,  to  the  Clerk  for  a  transerijit  of  tlie  record, 
to  be  brought  up  and  lodged  with  the  Clerk  ol'  this  Court. 
J\Ir.  Hall  intending,  could  he  have  inociiieil  it,  to  have 
brought  it  up  himself — but  was  infoi  med  by  the  Ch-rk. 
that  he  hiul  not  then  time  to  make  it  oot,  but  that  he 
(138)  wiuild  lianil  it  in  lime  lo  the  office  of  tlie  Superior  Court 
Clerk.  Upon  this  affidavit  the  PlaintiflT's  Counsel  con- 
tended, that  the  act  of  Assembly  only  contemplated  the 
affirmance  of  judgment  and  double  Cfisis,  in  cases  where 
the  appellant  craved  the  appeal  fur  the  purpose  of  gain- 
ing time,  and  delaying  the  other  party  ;  hut  many  cases 
had  occurred,  where  the  appellant  having  been  hindered 
by  accident,  or  the  default  of  the  Clerk,  from  bringing 
up  his  appeal  in  time,  had  been  helped  by  certioj-nri: 
and  that  he  understood  the  rule  in  sucii  cases  to  be  this, 
where  it  was  not  owing  to  the  default  or  neglect  of  the 
appellant,  but  to  some  other  cause  not  under  his  coiitroul, 
that  the  appeal  was  nut  brought  up  in  time,  he  sliould  be 
relieved  by  certiorari;  for  it  frequently  happens  that  thf 
appellant  has  good  cause  for  his  appeal,  and  may  intend 
to  pro>^ecute  it,  but  owing  lo  the  ilefault  of  the  Clerk  of 
tiie  County  Court,  or  to  some  other  cause  not  imputable 
to  the  appellatit.  he  may  bo  ineventcd  from  having  it  re- 
moved ill  time;  and  then  surely  it  would  be  great  injus- 
tice, and  not  within  the  true  meaning  <if  the  act,  that  the 
judgment  appealed  froin  should  be  affirmed. 

Judge  Macay — The  act  is  express,  that  unless  the 

Transcript  be  filed  with  the  Clerk  of  the  Superior  Court 

fifteen  days  before  the  commencement  of  the  term,   the 

judgment  shall  be  affirmed  with  double  costs;  and  Ican- 

-    not  narrow  down  the  operation  of  the  act,  by  guessing 


IIAVWOOU'S    UEl'ORT^;.  159 

at  what  was  lli>^  jJiMbablc  meaning  of  tlie  Lesislalurc.  If  Oct.  1791. 
the  Clerk  lias  done  amiss,  he  is  liabli',  to  pay  a  fine  to  the  >.i^"v^««»' 
party  ejiieved.  and  to  answer  liini  in  dainages  j  as  also 
to  be  pi.>siTulcd  for  a  niisflpnieaiior  in  oirii  o  ;  -and  that 
must  be  the  reimdy  which  the  I'hiintiir  must  pursue;  of 
coiir><c  Ihe  judgment  must  be  affirnn  d  with  dmiblo  cost, 
and  the  motion  for  the  certiorari  ovri  ruled.  The  Coun- 
sel for  the  PlHinlilT  then  br£;!i;ed  leave  to  iniike  some  other 
observations,  whiih  had  eseapcd  him  whilst  n|>  b-'fore, 
and  said  he  would  submit  whether  it  was  not  now  too 
late  to  mine  for  an  aflirmance  ol' tlie  Jud_^ment — ilie  a}>- 
pcal  was  I'eturnable  to  Oitober  term,  l"9o,  and  the  first 
day  of  that  term  was  the  day  in  Court  given  to  both  par- 
ties ;  in  like  manner  as  if  a  writ  or  any  oihcr  process 
had  been  returnable  to  that  fcriii,  that  would  have  been 
the  day  piven  to  both  parties  lo  a[ipear  ;  if  in  such  case, 
the  I'laintiR"  had  not  caused  the  writ  or  olhtr  process  tn 
be  returned,  and  Ihe  D^  fendatit  should  not  bo  calidi  up- 
on, and  the  cattsc  continuid  in  Court  to  another  day  j^^i- 
ve«i  to  the  parties,  it  would  be  clearly  a  disrontinnaiice  fiagA 
of  (hat  cause,  and  a  dismihsion  of  the  Dt-lcuiiant  fnnn  all  ^ 
lurthcr  attendance  on  it.  So  here,  the  a[ipvliaiit  and  ap- 
pellee being  both  to  appear  rii  Ocloiier  term,  1793,  tho 
appellee  lo  answer  to  the  apjieal  if  brouglit  up.  or  t'» 
move  for  affirmance  of  judgment  if  not  brought  up,  and 
the  time  having  passed  without  any  thing  done,  or  any 
motion  made  on  eillier  side,  or  any  fuitbi  c  day  given, 
they  were  after  the  expiration  of  that  teriti  both  out  of 
Court,  and  could  not  be  again  broiiglit  in  but  by  some 
new  jM-oress  :  otherwise  this  iudin^ciiience  «ouid  result, 
that  ten  yeais  afterwards  the  appellee  might  come  into 
Court,  and  move  for  the  aftiiinancc  of  the  judgment,  and 
double  cost's,  when  per-haps  in  the  mean  time,  tiie  appel- 
lant might  have  satisfud  the  appellee,  or  obtained  his 
iclease  or  other  discharge  from  the  demand  or  cause  of 
action,  and  he  would  have  no  opportunity  to  sliew  this 
against  the  motion  for  the  affirmance  of  the  judgment. 
If  the  appellee  may  move  for  the  affirmance  at  the  second 
term,  he  may  mine  by  the  same  reason  at  the  fouilli  op 
fortieth  teiin  after — he  may  wait  until  the  e\idenre  of 
the  release  or  discharge  be  destroyed,  or  till  the  appel- 
lant has  moved  away  to  another  State  or  cotintry,  and 
then  subject  his  bail  here,  or  such  property  perhaps  as 
was  bound  by  the  judgment  in  the  County  Cuci  t.  though 
in  the  hands  of  a  honajiile  purchaser. 


160  Haywood's  keports. 

Oct.  1794.  Judge  Maoay — It  might  have  been  proper  perhaps,  in 
'*'~''''^*'  formine;  the  first  decisions  upon  this  clause  of  the  act. 
f(ir  the  Courts  to  have  held  it  necessary  to  move  for  the 
affirmance  of  judgment  at  the  first  term  of  the  Superior 
Court  after  the  appeal  prayed  ;  hut  the  uniform  practice 
huth  been  to  move  for  the  affii-mance  at  any  term  after; 
and  riiod  some  adjudications  in  tliis  circuit  at  Newbern 
to  that  elfert;  and  therefore  notwithstanding  this  latter 
objection,  lip  ordered  the  judgment  to  lie  affirmed  wltli 
<h)uble  costs,  atid  it  was  affir'ini'd  accordingly. 

Note  -  As  to  wli:<t  circiimstunces  will  !)e  deemed  sufficient  to  enti- 
tle a  party  to  a  certiorari  see  Chambers  » .  Smith,  poxt  366,  lioherlson  v. 
Stoive,  potf  402.  McMillan  v.  Smith  «  IVnlher,  2  Car.  Law  Rep.  77, 
Dyer  V.  Jiidi,  2  Cur  Law  Rep.  610,  Sti-ele  v.  Harris,  ibid.  636,  lloudv. 
Orr,  N.  C  Term  /ie/j.  151,  />„vi.^  v.  Miirn/m/l  &  Rms'H,  2  Hawks,  59, 
Mera\.  Scales  &  McCain,  tlid-  364.  Tin'  propriety  ot  tlie  other  part 
of  the  decision  was  dtnied  by  Hatwood  Judge,  in  an  anonymous  case, 
post  171. 

Hamilton  v.  Mary  Williams. 

Macit  Judge  inclined  to  think  tliat  tlie  htmdwriting  of  a  subscribing 
witness,  who  hail  voluntarily  become  nit  rested  in  tlie  bond  could 
not  be  proved.     Sed  adjournaiur. 

Debt  upon  bond,  and  non  est  factum  plcadcil.  Thcal- 
lestitig  witness  was  one  Cordall  J^trflext,  and  there  was 
an  indorsement  on  the  bond,  Iransfi'rring  it  and  its  con- 
tents to  him.  The  bond  itself  bote  date  prior  to  the  time 
when  bonds  were  first  rendered  negotiable  in  tliis  State. 
It  was  argiieit  for  the  Plaintiff,  and  insisted  upon,  that 
thehiMid  writing  <i\' Mtrfleet,  the  attesting  witness,  might 
be  prinen  ;  iind  this  was  compared  t»  (he  case  in  Slra. 
(140)  34,  \\i,cie  Mie  subscribing  witness  having  become  the  ad- 
minis'i:  i.i%  his  hand-writing  was  admitted  to  be  proven. 
It  was  i.No  compared  to  the  cases  wltere  tlie  witness  be- 
comes blind,  or  is  <onvicie<l  of  nerjury  or  forgery,  or  is 
made  a  legatee,  o'-  becomes  heir.  And  the  evidence  in 
the  present  ca«-e  offered  by  the  Plaintiff  was  admittrd, 
Judge  Macay  being  on  the  hencli,  and  a  verdict  obtain- 
ed :  wliereu|ion,  G'ti.  l)av\e  moved  that  (he  verdict  might 
he  set  aside,  the  evidence  upon  which  it  was  grounded, 
being  improper  ;  and  be  aegned  that  in  the  case  of  tli* 
executor,  arloiinistrator  or  legatee,  the  i.tw  gave  them 
that  chartcter,  or  placed  tliem  in  that  situalnin.  which 
disabled  them  to  give  testimony  ;  at  least  they  did  not 
acquire  such  cliaracters  or  offices  by  their  <iwii  indepen- 
dent voluntary  act,  and  in  such  cases  there  was  no  rOoB 


hay-wood's  reports.  Itil 

for  presi!min_s:  r.iiy  c()!iil)iiiatii)ii  brt^vccii  tlic  ohlicjen  ami  Oct.  i^g.j. 
tlie  .witness  :  liut  Iii0«c.'"asi>s  are  liof  like  tlie  pfcseiit,  if  '-'''^^'^^^ 
tlio  e\i(leiice  ailmittcil  in  this  nisc  slioiikl  be  nllowalilc*  n 
wide  <l<)oi'  Would  be  ojit-npd  foe  frf.iul,  ami  it  would  im- 
iticdiiitcly  be  put  in  piaclirc — liio  foi-iLjef  of  a  bond  woold 
have  iioihiiig  ol'^i'  ti)  do,  but  to  i-ndorse  to  the  stibscfib- 
ing  witness,  and  tiiat  witness  to  s;k'  and  eBVct  (lie  rrco- 
vi'ry  upon  proof  of  his  own  band-wi-iting.  Sooultl  it  be. 
a  case  of  iisiii-y  or  of  gaininj:;  oxislins;  in  tbr  knowlefltre 
of  tiie  v\iin("^s  only,  as  fri-qnciitly  bajipens,  an  indorse- 
ment like  ibe  present,  ami  the  ai'iiiissimi  of  sncli  lesti- 
moriy,  would  eflertually  pxclmle  ibc  trutb  of  tlie  transac- 
tion, and  make  the  bond  valid,  ti)!)!i.i;h  in  realiiy  it  was 
vdiil  by  !be  rules  of  l:iw.  Sliould  this  decision  be  esta- 
blislird  as  law,  it  will  iminediateiy  become  the  common 
practice  to  assiijn  ail  sih  h  bunds  lo  (be  witness,  for  the 
purpose  of  procuriojB;  a  Uile  valiility  to  them.  This  rase, 
tbeitfor<',  is  not  to  be  assimilated  to  the  cases  citi  d — in 
tbosi-  MO  mischief  resuhs  from  the  admission  of  proof  of 
the  witne-^s's  liand-wriiin^;.  li  is  not  to  be  jiresiimrd 
tliat  tlie  witness  will  undergo  a  conviction  <if  forgery  or 
perjury,  or  Ibat  a  testator,  intestate  oi- ancestor,  will  |iro- 
cnre  the  person  that  is  to  be  bis  executor,  administrator 
or  heir,  to  witness  a  forced  in--truniPrit,  or  rme  invalid  in 
other  respects,  to  tlie  end  tbut  after  the  death  of  bimsclf, 
a  recovery  may  becff'cted  by  proid'of  tlicir  band  writing. 
There  are  but  few  men  have  aiiaiiied  to  su<h  a  di'^ree  of 
baseniss,  as  t<jci)ntrive  IVaiids  to  be  executed  after  iln'ir 
deaths  j  the  uncertainty  itself  of  the  lime  of  death,  which 
is  generally  viewed  as  at  a  distance,  is  a  sut]icicnt  guard 
against  any  such  attempt — but  in  tiiis  rase,  and  in  all 
Cases  like  it,  the  mischief  of  such  evidence  is  greatly  to 
be  apprehended. 

Judge  iMAC.vY  seemed  to  be  of  this  opinion,  and  he  or-     (I4i) 
dered  tlie  jmlgmeut  lo  be  siaycd  un'il  this  (juestion  could 
be  ai'giied  before  more  Judges;  and  it  was  atljoiirned. 

Note — VhU-  acr.  //all  v.  Byuum,  2  7/av.  32S,  Johnson  v.  Xniglit,  2 
Mm:  '237,  S.  C.  \  Car.  L.iv  Hep  93.  '  all  v.  Bi/num  w  .s  a  rase  in 
wliicli  lb  subscrii'iiig' witii' ss  u'd  <  nd  ra  <J  ti)  tin- Pl.4in:.fr  ihc  bond 
wliicli  li.i  I  been  assjjucd  lo  liin  ;  and  in  .luch  ;i  case,  if  the  su'uscrib- 
\ng  witness  h.iil  endnrsed  witiiout  recmirse  lo  him  and  was  also  ivlt- as- 
fi\  by  his  eiidorii'f,  the  Plaintift".  lie  arniild  be  a  cutnpetent  witness. 
nilUttt^sb'^  V.  Knl^l.t,  X.  V.  Trrn  Rep.  XO"-,. 

9A 


162  Haywood's  reports. 

M.r.  1793.  MORGAN,  MARCH  TERM,  1795. 

Stale  V.  Greenwood. 

After  a  verdict,  in  an  indictment,  it  ii  too  late  to  object  that  one  of 
the  jurors  was  nota  freeholder  in  thii  State.  If  it  appear*  upon  ano- 
ther trial  of  the  same  cause,  in  which  the  perjury  is  auigned  to 
have  been  committed,  thst  the  person  convicted  did  not  swear 
falsely  in  the  first  trial  of  the  cause,  a  new  trial  will  be  granted  him 
upon  that  ground. 

He  was  indicted  of  perjury,  and  convicted  ;  and  his 
Counsel  nrioved  fur  a  new  trial,  u])on  the  ground  that  one 
of  the  jurors  was  not  a  frceliolder  in  this  State.  The  ju- 
ror had  been  examined  before  lie  was  sworn  on  the  jurj, 
wliether  he  was  a  freeholder  or  not,  and  answered  in  the 
affirmative.  The  fact  is,  that  he  was  a  freeholder  in 
South-Carulina,  but  not  in  this  State.  This  a|i|ienrcd 
by  the  affidavit  of  the  juror  himself,  now  produced  in 
support  of  the  motion. 

Judge  Macat — I  think  this  is  a  case  that  deserves 
consideration.  I  have  understood  this  objection  has  for- 
merly prevailed  in  a  ci\il  case,  at  Hillsborough,  in  an 
ejectment  cau.sc  in  which  General  Butler vfixs  Defendant. 

Judge  Hatwooii — I  will  give  no  judicial  opinion,  ha- 
ving preferred  this  indictment  whilst  Attorney-General. 
"Were  I  to  give  one,  I  should  not  hesitate  to  decide  against 
the  objection — he  might  have  taken  his  exception  to  th« 
juror  before  he  was  sworn ;  that  is  the  time  the  law  ap- 
points for  him  to  take  it ;  and  in  this,  as  in  all  other  ca- 
ses, when  the  objection  is  not  made  at  the  appointed 
time,  and  the  parties  proceed  to  4)tlier  stages,  which  in 
point  of  order  are  posterior,  they  can  never  afterwards 
be  allowed  to  recur  to  the  advantage  they  have  passecf^ 
as  if  a  Defendant  pleads  in  disability  of  the  Plaintiff,  he 
admits  the  jurisdiction  of  the  Court ;  if  he  pleads  to  the 
Court,  lie  admits  tlie  ability  of  the  Plaintiff;  if  he  pleads 
to  the  writ,  he  admits  the  form  of  the  Court  to  bo  good ; 
if  he  pleads  in  bar,  he  waives  all  pleas  in  abatement ;  i( 
he  is  to  plead  to  a  sci.fu.  he  cannot  defend  himself  by 
any  matter  of  defence  he  might  have  used  in  tlie  first  ac- 
tion. ,  So  it  is  with  respect  to  challenges — if  the  party 
will  not  take  his  challenge  before  he  is  .sworn,  he  can  u* 
Ver  afterwards  challenge  for  a  cause  exi.sliiig  before  he, 
was  sworn.  Vide  Trials  per  pais,  142,  145.  3  Hurr. 
1858.  Were  a  Defendant  allowed  to  take  his  challenge 
to  the  jurors  after  the  trial,  he  never  would  do  it  before, 
bat  would  always  rather  depend  upon  moving  it  to  tht 


Haywood's  reports.  163 

Court  after  trial — for  if  he  slioiild  be  arqiiittcd,  he  would  Mar.  1795. 
say  nothing  about  the  disqualification  of  the  juror;  and  ^"^'"'"^^^ 
if  convicted,  he  could  avoid  judgment  by  offering  his  ob- 
jection. This  in  fact  vrould  be  placing  him  in  a  situa- 
tion totally  exempt  from  danger  and  from  punishment,  so  (142) 
long  as  he  couhl  get  a  juror  sworn  against  whom  lie 
could  ofTer  any  legal  objection,  and  would  give  him  the 
additional  advantage  of  several  chances  for  his  accjuit- 
tal.  There  is  a  case  in  Leach,  which  comes  nearly  e- 
nough  to  the  present  to  shew  the  principle  I  have  spoken 
of.  There  the  ofticer  that  returned  the  jury,  was  the 
prosecutor  of  the  indictment,  and  consequently  the  whole 
array  was  liable  to  be  quashed  had  the  Defendant  made 
the  objection  at  the  proper  time — he  however  put  him- 
self upon  his  trial  without  taking  the  exception,  and  was 
convicted  ;  he  then  offered  to  take  the  exception,  but  tlio 
.  Court  held  it  then  too  late  to  take  it,  and  overruled  the 
exception.  The  cause  was  adjourned  for  further  consi- 
deration.    See  5  Bac.  M.  245,  7  Mo.  54,  Uolt  235. 

NoTB. — This  motion  came  on  at  a  subsequent  term,  before  J'jJjje 
AsH«  and  Judge  Macat,  and  they  disallowed  the  exception,  but  de- 
layed giving  judgment  for  another  cause  ;  and  at  September  term, 
1796,  Ine  cause  being  tried,  in  which  the  perjury  was  alledge d  to  have 
been  committed,  beiore  Judge  Wiliiihs  and  judge  IIatwooii,  and 
they  being  of  opinion,  from  the  oaths  of  several  witnesaes,  sworn  on 
that  trial,  concurring  in  the  same  fact  that  Greenwood  had  formerly 
sworn  to  in  the  trial  of  the  same  cause  ia  the  County  Court,  that  pro- 
bably it  was  not  falsely  sworn  by  him  ;  they  thought  this  might  be  \ 
proper  cidse  for  a  new  trial,  and  granted  a  new  trial  accordingly  on 
that  ground. 

Note.— The  objection  with  respect  to  the  juror,  would  have  been 
*  good  one  if  taken  at  the  proper  time.  Sheepihanks  it  Co.  v.  J.net, 
\  9  ffawks,  211.  But  after  the  verdict  it  is  too  late.  Slate  v.  McEnliif. 
a  Car.  Law  Sep.  287,  Stale  v.  JVarJ,  2  ffatuhi,  443. 

Mehaffy  v.  Spears, 

In  this  case,  the  jury  could  not  agree  upon  the  evidence,  and  »  juror 
was  withdrawn  :  But  it  seemed  to  t>e  agreed  by  all  the  bar,  and 
Judge  MiCAT,  that  if  the  jury  bad  found  for  the  Defendant  on  his 
plea  of  "  tender  and  refusal  at  the  day  and  place,"  where  he  was 
bound  by  a  sealed  writing  to  deliver  a  certain  parcel  of  ca'tle,  that 
the  Plaintiff  would  have  been  forever  barred  of  aiiy  recovery  on 
the  covenant. 

This  was  an  action  of  covenant  upon  a  sealed  writing, 
for  the  delivery  of  a  certain  number  of  cattle,  of  a  cer- 
tain description,  on  a  day  stipulated  and  stated  in  the 
•greement.  The  Defendant  pleaded  a  tender  and  refusal 
«t  the  day  and  place,  and  upon  this  the   IMnintiff  joined 


(143) 


^^4  Haywood's  KjiPORTfe. 

"^'^•i'ssiip.  And  now  on  (he  trial  it  appnarrd  in  pvideiMC. 
t'  at  'he  Dcfrndjiiit  on  'ho  diy  and  a'  tlio  plarp  appoint- 
ed, tcnilci-ed  ii  e;reii!pi'  >iiimi)pr  of  ratlli- tlian  the  wiilinu; 
doinandcd — siiiup  of  tNem  ilns^v(■^ill^2:  the  d<'sri-ipiion, 
otliers  not;  so  that  the  cliief  matter  of  dispnio  upon  ilic 
cvidenre  was,  whi-tlier  tlietc  were  a«  many  cattle  of  the 
descripiioi)  as  (lie  contrari  reqniri'd.  It  appeared  fur- 
ther upon  the  evidonre,  that  al'tei-  the  teiiih-r  made,  and 
refii'-al  to  af(e))t  the  rattle  on  the  part  of  t)ie  I'laimiff, 
the  Defendant  killed  p;irt  of  tlie  r;ittle,  and  sohl  otliers. 
Tiiejury  could  not  a.!;ree,  and  a  juror  was  \vithdrav^n. 

NoTK. — Ntitnitlistaiiilinp  (lie  circiims'anrc  rf  ib<-  Defendant  linv!)i:; 
killn!  pari  of  the  ciittl",  an  J  ilisijosed  ot'otlurs  of  hen,  il  spirncil  t  > 
be  apreeil  bv  the  at'iunies  on  bolli  sid' s,  and  indeed  io  lip  admitted 
by  all  Ih'  I'ar,  and  by  .Iiit  rp  Mac  t,  that  it  'his  isiiir-  sho'ild  be  found 
apairist  llic  HlaiitifT,  be  would  thereby  he  iilter'yl  arr.  d  of  his  recove- 
ry upon  Ihe  rovenaiit.  This  seetr.s  to  be  amoiijTst  'h'  apices  ttrlcH ju- 
»■/»  I  bat  are  rot  very  con'ormablf-  to  the  common  idia<;  of  justice — 
Shall  the  Defeiidiit  be  allowed  to  retain  the  value  receivi-d  f<  r  the 
cattle,  by  kiliinp;  and  dispn-.ui!,'-  of  th-  m,  and  be  discliarpred  at  the 
same  lime,  hy  his  tender,  frim  n  deht  of  the  vanie  vulue  due  to  'he 
Plain'ifT  ?  Shall  he  ht-  discli.-.ri^.  d  of  bis  debt  when  it  is  appaient  the 
refusal  on  tin  part  ef  the  Pbiii'tilf.  biis  not  hc-n  attended  with  any 
loss  to  himself?  The  opinio;i  that  Imlds  tlir  afliriative  of  thi-  propo- 
sition, stem«  to  be  foun.b  d  on  a  p  issiire  in  Cn.  Lit  2>7-  "  If  a  mun 
be  bound  in  two  hundred  quarters  of  wheat  for  delive'V  "f  inehun- 
dr  d,  it  the  oblipor  tend  r  ai  the  d:iy  om  hundred,  ]v  shall  not  pkad 
nncure  prisi,  becmse  albeit  It  be  parrel  of  the  condition,  yel  they  be 
bona  peritura,  and  it  is  a  ch  irge  for  the  obHi^or  to  keep  lliem  "  This 
passage  is  (nund'-d  on  the  report  i>f  Peijton'.i  case,  9  Jlrp.  79.  where 
this  was  not  the  point  in  ques'ion,  hut  iiieiit  oned  arguendo  only — 
;mdonlysajs,  "  If  he  oblipor  in  sucli  case  tciuler  at  the  day,  and 
the  other  refuse,  he  f.h  dl  plead  it,  without  sayinp  he  is  yet  read\ ,  be- 
cause the  corn  if  become  y^fn'/int/m,  and  it  is  a  charge  to  il'e  oblijjor  to 
keep  it."  The  author  of  5  Jiuc  M,  speakinff  of  such  a  tender,  says,  ' 
"But  if  the  ihinp  tendcreil  be  so  hi-a\y  that  it  cunnot  be  well  carri'd,  -^ 
it  is  not  necessary  lo  plrud  a  tindf  r  of  this  with  a  profort  in  curiam." 
He  cites  lira,  and  2  lioll'i  M  524.  Mav  not  a  mistake  have  aijseu 
from  the  (quivocal  u»e  of  term  uncnre prist  '  When  the  debt  or  duty 
is  discbarfjed  by  a  tend^  r  (as  it  is  In  some  cases  where  it  depemis 
sol 'ly  on  a  con<lition  pei-f  jrn  able  by  tender,  and  is  not  a  debt  or  du- 
ly pr'Cedent  and  in'lcpendent  of  the  cimdilion)  the  party  in  pleading 
shall  not  he  bound  'o  say  uncore  prist  ;  ard  may  il  n"t  have  been  in- 
ferred fnun  hence,  that  whtiu-ver  he  is  not  bound  !o  plead  utcore 
Jlritt,  the  ilebt  or  duly  is  dischaiped  .>  Vet  perhaps  this  is  tioi  a  ne- 
•fSiiry  consequence  s  it  is  possible  the  no'  heinc  bound  to  plead  un- 
core prist,  may  be  for  another  ri  a«on  in  some  cues,  namely,  where  it 
would  he  charjjeable  to  the  party  to  keep  the  goods  tendered,  or  to 
hire  a  warehou'e  'o  preserve  them,  or  to  buy  provinder  tor  the  cat- 
tle ;  which,  and  the  hk'  r<-»sons,  may  be  justb  sufficient  'o  exempt 
the  party  from  the  necessity  of  plead  in|;f  uncore  print,  and  yet  be  no 
sufficient  cause  to  discharge  him  from  the  debt  or  duty  entirely.  Ip. 
deed,  in  tiich  cases,  juaticc  seems  to  require  that  he  should  not  b* 
compelled  \«  keep  the  expensive  article  always  by  him,  so  as  to  be 


HAYWOOD'S    KEPOKTS. 


165 


able  at  all  limes  to  plcatl  ;il\>  ly*  readv  ;  as  in  tlie  case  oFmonev,  "liich  Mar.  ir95. 
m«y  be  kept  withoiM  .'Hy  expence,  tlioiiph  nut  wltl.ocit   sirrn*  disnd-  ^^^v"^^ 
vant.'pe  and  risk.     Thesi-  snpirts-iima  aim  (.i.!y  at  the  exciiing  au  en- 
quiry   into  a  pc:sitioi',  which  under  the  citcuoistimct-s  of  the  case  at 
Morgantcin  appears  li.-.rdly  compilible  witli  jiist^re. 

Note. — Or,  (h?  snme  page  of  Co.  Lift,  to  which  ffavu'riod  refers  in  , 
his  note  to  this  cise,  is  to  be  ffiiuid  this  p^iss.i^e  :  "  If  m  obhjjation  of 
an  hui'drfii  round  be  made  with  •  condition  for  ih  payment  of  fifty 
pou'  d  at  a  day,  tnd  at  the  day  the  nbliRor  tenilcr  tlie  moii-y,  >indihe 
obli^'ee  lefti-ctli  the  i-ame,  yet  in  !r  tion  of  debt  upon  the  uhlipalion, 
if  the  UefendHnt  plead  the  tender  and  refiis;d,  he  must  rd-o  plead 
that  he  is  y^  t  re;idv  to  pay.  Ilie  money,  and  iend>T  ihe  same  m  Court, 
lint  if  the  Phiintiff  wid  not  thcri  r>ceive  it,  but  takes^sue  upon  the 
temler.  and  thi-  same  br  fiund  against  him,  he  hatlt  lost  the  money 
forever."  This  pa:.sap;e  is  contrasted  «  itii  that  "efevred  to  in  the  Re- 
porter's  note,  and  the  reason  assifsn^d  for  the  diflercnce  is,  that  al- 
t)i"iigh  the  100  quarters  <i1  uheat  is  parcel  of  tlie  condition,  yet  as 
th<  y  ari  limia  pfrilura,  the  oh)i^or  shall  not  be  bound  to  keep  them 
and  plead  uncore  prist.  The  money  is  not  so  liable  in  perish,  arid  is  no 
chjrpre  to  the  obligor  to  keep  ;  therefdre  the  debt  or  duty  shall  not 
be  extinpiiished,  iir.less  the  Plaint, 0'  dtnies  the  fact  of  tinder,  and 
(joes  to  issue  ujjon  it  ;  in  wLicli,  if  it  be  found  as  dnst  him,  he  shall 
lose  his  money  for.  ver.  IT  re  the  difi'ercnce  and  'he  rasons  for  it, 
are  plainly  observable  ;  thai  in  the  case  of  the  pir-slia'di  g  'I'ds,  the 
obligee  risqii,-s  the  entire  loss  of  them  bv  refusal  at  ilie  time  of  lender; 
but  in-thc  c  -se  of  mnnej,  he  does  not  foriV  t  iis  riu^lit  to  it,  uniil.  after 
suit  brnusht  and  tender  pleaded  with  an  uncore  prist,  he  refuses  to 
tak  the  monc\,  but  joins 's-uc  u|  on  the  fact  ..I  the  tender.  Tt  seems 
accordinjj  1(1  lalur  authorities,  tiial  the  PI.  intifl'  would  not  lose  his 
debt,  as  the  |)le  i  of  lenrUr  is  iji  bar  of  dam.";^es  only,  and  the  d.-bt  or 
money  due  is  always  brought  into  Court.  1  Sauiid.  33,  note  2.  But 
it  mig'  f  be  difficult  to  find  an  authority  which  recognizes  a  rif;ht  to 
perishable  goods  after  tender  and  refusal  ,-  and  an  attentive  consider- 
ation of  the  cuS'  niis;ht  not  discover  mucli  iojustice  in  it.  It  may  be 
very  difTiiiilt  to  obtain,  in  the  first  instance,  sp,  cific  articles  of  the 
kind  and  drscription  mentioned  in  the  obligation  ;  and  after  the  De- 
fendant has  been  at  the  trouble  and  cxpence  of  procuring  such,  and 
making  a  tender  of  tlum  in  discharge  of  his  obligation,  if  tliey  are  re- 
fused, no  course  can  be  pointid  ou  to  place  him  in  the  same  situa- 
tion as  if  they  had  been  r,-ceivi  d.  Those  articles  which  he  lias  alrca 
dy  prcured  may  p  rish,  and  it  may  br  impossible  for  him  to  obtain 
others  ;  and  to  say  that  he  should  pay  the  vahir,  would  be  subjecting; 
him  to  a  difl'erent  h.ibility  from  that  which  he  contracted  for,  wi'hout 
any  default  on  bis  pirt.  The  merely  disch"a:ging  liim  from  dimvges 
could  not  there,  :,sin  'he  case  of  money,  answer  '.!io  substantial  justice 
nf  his  case.     Ideo  qiKere. 


166 


HAYWOOD'S   KEPOHTS. 


MW.1795.  SALISBURY,  MARCH  TERM,  I79i. 

Hoiiscr  V.  Reynolds. 

Ejectment.  The.  PlaintifTand  Derendant  both  claimed 
iMidoi-  OIK'  freight,  wlio  wliile  an  infant,  had  conveyed  t<> 
Ilonser ;  ami  alter  lull  age,  to  Eeynolds;  but  after  com- 
ing; of  a.e;e,  ami  before  he  ccniveyed  to  Beynnlds,  he  said  to 
Hoiistr,  ''  I  will  never  lake  advaiita.a;e  of  my  having  been 
an  infant  at  the  time  of  executing  the  deed,  and  it  is  my 
wish  that  you  should  keep  the  land  ;"  and  upon  tlie  au- 
thority of  some  cases  cited  by  Mr.  fFhyte,  from  Bac.  M. 
Verb.  Infant,  where  such  or  the  like  words,  hat!  been 
held  to  be  a  coniiimation  of  the  deed.  Judge  Macat  di- 
(144)  reefed  thi*  jury  to  find  for  the  Plaintiff;  and  ihey  did  so. 
There  wen;  many  other  points  made  by  the  Counsel  in 
the  argument  of  this  case,  but  the  whole  cause  seemed  at 
leiigtii  to  turn  upon  this  only,  and  therefore  the  others 
are  omitted. 

Anonymous. 

Under  the  act  of  1762,  litv.  c-  69,  s  20,  which  directs  the  bonds  taken 
on  binding^  oiu  or|)haiis,  to  be  made  with  the  Cliairman  of  the  Court 
and  his  successni,«,  tl'e  bond  is  good  although  Ihe  eucceasor  be  not 
namrd  ;  ami  a  suit  may  be  sustained  in  the  name  of  the  xiccessor. 
After  the  |)lca  of  conditions  performed,  no  advantage  can  be  taken 
of  any  iucimsi  tcucy  ;n  the  indentures  of  apprenticeship,  19  where, 
in  a  part  of  the  instrument,  tfic  name  of  the  apprentice  is  put  for 
tliil  of  the  Charmaii.  A  verdict  finding,  anions  other  things,  »n  is- 
sue not  submitted  to  the  jury  is  void  as  to  such  finding. 

This  was  an  action  of  covenant  in  the  name  of  the 
Chairman  or  presiding  Justice  of  the  County  Court,  a- 
gainst  the  Defendant,  to  whom  the  real  Plaintiff  had  been 
bound  as  an  orphan  child;  and  he  declared  upon  the  in- 
dentures, taken  under  the  act  of  1762,  c.  5,  s.  20,  and 
stated  as  a  breath,  that  the  Defendant  had  not  taught 
him  the  trade  he  agreed  to  teach  him,  that  he  had  not 
taught  hiiu  to  read  and  write,  *tr.  The  Defendant  plead- 
ed, tliat  he  hail  pci  formed  his  covenants,  &c.  Upon  the 
trial,  the  Plaintiff's  Counsel  produced  the  indentures, 
and  read  them  to  the  jury  ;  whereby  it  appeared  that  the 
covenants  were  introdured  in  the  former  part  of  the  in- 
strument, as  between  the  Chairman  of  the  Court,  but  not 
with  his  successors,  of  the  one  part,  and  the  Defendant 
of  the,  other;  and  in  a  suhsequpnt  part,  the  name  of  the 
apprentice  was  put  fur  tiio  name  of  the  Chairman,  which 
rendered  the  whole  writing  insensible. 


Haywood's  kepouts.  167 

It  was  oI)jccteil  on  the  part  ofllie  Defccidatit,  that  tliis  M«r.i795. 
t)oiid  is  not  made  pursuant  to  17G2,  c.  5,  s.  20,  wliicli  di-  '-^'^''''^^ 
rects  it  to  he  with  the  Chairman  atid  his  succi'ssors,  and 
therefore  it  was  not  such  a  writiiip;  as  could  hn  |irosrcii- 
(cd  ill  the  name  of  the  successors  of  (he  ptTsidiuji.Jusiicc. 
named  in  the  indentures;  and  tliat  this  ariiuii  biing  in 
Uie  name  of  tiie  successor,  the  prfsont  Cliairtnati,  could 
not  be  s'jpj)orted  ;  siiid  moreover,  (hat  the  covenants  be- 
ing iiisensihle.  Iiv  I  lie  mistake  in  the  sub-^ecpieiit  part  of 
it,  was  tlieref'iiro  wliolly  vitiated,  and  that  no  action 
vhatever  could  be  supported  on  it.  It  bej^ins  as  a  cove- 
nant intended  to  be  made  with  the  presidius^  Justice,  and 
then  recites  an  agreement  with  the  apprentice.  These 
objections  were  reserved  for  furtiier  consideration  after 
tlie  verdict  should  be  taken,  which  was  agreed  to  be 
made  subject  to  the  ojiinion  of  the  Court  upon  them  ;  ac- 
cordingly the  jury  gave  a  verdict,  that  liie  covenants 
were  not  performed,  and  assessed  damages ;  and  after- 
wards on  a  subsequent  day  in  this  same  term,  the  objec- 
tions were  argued,  and  the  Court  gave  their  opinion. 

Per  curiam — The  first  objection  here  is,  that  tiie  cove- 
nants are  not  made  with  (he  successors  of  the  presid- 
ing Justice  as  well  as  with  himself,  and  fir  tiiat  reason  (1455 
it  is  argued  tiie  successor  cannot  maintain  this  action 
as  he  migiit  have  done  iiad  tiiese  words  been  inserted. — 
The  second  is,  that  the  covenant  produced  is  insensible, 
through  the  mistake  of  inscribing  the  name  of  tlie  appren- 
tice in  tlic  subsequent  part  <if  tiie  indenture,  instead  of 
(lie  name  of  tiie  presiding  Justice,  as  it  should  have  been. 
As  to  tiic  first,  though  it  be  tiie  general  rule-,  that  a  per- 
sonal chattel  cannot  go  in  succession  to  a  sole  corpora- 
tion, yet  it  was  theclear  intent  of  this  act,  that  indentures 
of  ajiprenticeship  sliould  be  sued  in  the  na(ue  of  the  pre- 
siding Justice  and  his  successors;  and  if  an  action  can- 
not be  maintained  in  the  name  of  the  successor,  when 
the  presiding  Justice  is  dead,  as  in  the  present  case,  it 
will  be  dilUcult  to  say  in  wliose  name  itsliall  be  brought 
80  as  to  answer  the  imrposes  of  Justice.  It  miglit  he  ob- 
jected with  propriety,  that  the  executors  of  tlic  former 
presiding  Justice  could  not  maintain  it  because  tliey  are 
not  named  any  more  than  liie  successors,  and  at  the  ma- 
king of  the  covenant  there  was  no  intention  in  the  con- 
tracting parties  that  an  action  ever  should  be  maintained 
by  executors.  The  law  itself  not  intending  the  action 
tA  be  brought  by  csecuturs,  Lath  not  declared  theui  trus 


168  Haywood's  repouts. 

Mnr.  1795.  ffgc,  fnp  file  a|)prenti<-p ;  and  sliotild  they  be  allowed  to 
^•^"''"^^  inaiiitaiii  the  suit  .iiul  effert  a  reroverv,  they  would  also 
be  eiitiiled  to  fTreivt-  the  mimey,  and  the  Court  could  not 
say  they  are  only  tiii'itecs.  In  all  CHse.s  at  law.  \]v  (xt- 
soii  who  maintains  the  suit  is  entitled  to  the  hencfit  nf  it. 
unless  in  Ihi^se  special  cases  vvlieie  he  is  by  statute  de- 
clared to  be  a  trustee  and  a  noniiuiil  Pliiniiff"  only — sup- 
pose in  the  p'  e^eiif  case,  the  execato!  s  may  lie  consideicd 
in  ihe  li,e;lit  of  iinsiees,  ihcy  may  ihen  assijjn  a  breacli 
of  covenant  as  lia»in.a;  not  hern  perror'm'Hl  ;  but  how  can 
tliey  aM  r  ii  to  he  ad  dammiin  ipsnrum.  who  in  Irnth  havr- 
sustained  no  daniai^es,  as  not  lieinjy  the  lejjal  father  ov 
guardian  of  the  lij^liis  of  the  apiirenlice?  If  neitlier  (hr 
executors  tior  yet  tlie  succc'-^or  can  maintain  this  suit, 
much  less  can  the  a|)|irenticc  himself  mainiain  it.  fir  llic 
covenant  is  not  made  with  him,  nor  can  be  by  law;  and 
should  the,  objection  prevail  against  the  right  of  Ihc  suc- 
cessor, ihe  covenant  would  he  wholly  invalid,  and  the 
injured  ajiprenlice  left  wuhout  remedy.  It  w>iuld  be 
improper  iherefoi-e  for  the  Court,  to  tjive  a  ready  ear  to 
this  ohjertion.  The  ind<'niures  are  either  made  under 
tlie  aulliorilv  of  the  act  1762,  or  they  are  void,  for  if  not 
made  under  tliat  act,  then  what  pow^  r  harl  the  presiding 
Cl46)  Justice  to  make  any  covenant  relative  to  the  orphan,  or 
to  bind  him  at  all?  Or  how  can  the  Delendant  justify 
Ills  taking  the  orphan  at  all  into  his  service?  It  will  ly^ 
iinl^roper  to  pronounce  the  covenani  to  be  void,  for  that 
will  defeat  the  plain  intent  of  ihe  |iat'lies  and  the  enils  of 
justice;  and  tlie  Court  will  supitoi-t  it  if  possible.  It  is 
a  rule,  that  whatsoever  is  sulKciently  implied,  need  not 
be  expressed  ;  and  the  act  hath  directed  t!ie  covenant  to 
be  witli  the  presiding  Jos  ice  and  his  succc'-soi  s,  princi- 
pally with  a  view  of  pointig  out  the  party  who  was  to 
bring  the  action,  in  case  of  a  breacli  of  ihe  covenant,  and 
the  death  of  the  presiding  Justice.  Had  the  word  suc- 
sessors  been  omitted  in  the  aci,  duubls  might  have  arisen 
for  v\ant<if  an  express  declaration  iTspi'Ciing  ilie  proper 
person  lo  bring  suit  after  the  de.ith  of  the  presiding  Jus- 
tice; which  doubt  is  prevented  by  the  addition  of  the 
worils  successors  in  the  act.  It  here  has  only  ihe  effect 
of  pointing  out  decisively  the  person  thai  is  to  sue  upon 
such  an  event ;  but  yet  the  covenant  without  the  words 
successors,  has  precisely  the  same  legul  p.opi-rties  arid 
Conseipieiices  attached  to  it  as  it  would  h.ive  with  it ; 
for  whenever  the  maker  of  a  persunnl  contract,  acts  as  an 


iiaywood's  reports.  169 

a,^nt  for  the  benefit  of  otliers.  Ity  appciintment  of  law,  Mar,  1795. 
in  an  official  chaiac/er  and  in  the  nmup  of  liis  office,  >>.^">'"^«' 
which  is  to  be  iieipeiually  coiuinned,  hucU  rotitrart  be- 
longs to  him  only  in  his  public  chaiiicter ;  and  whenev- 
er he  becomes  divested  of  that,  will  belong  to  the  same 
character  though  sustained  by  anothei-  individual.  It 
is  true  there  are  some  cases  in  the  books,  where  the 
law  will  not  allow  of  the  succession  of  a  personal  chat- 
tel at  all ;  as  anciently  in  the  case  of  Abliots,  Bisiiops, 
and  others  from  policy  and  mistrust  of  these  characters, 
lest  uniler  the  pn'tence  of  advanciug  the  interests  of  re- 
ligion, I  hey  might  draw  from  the  people  more  we.ilth 
than  was  consistent  eilhi-r  with  the  circumstances  of  in- 
dividuals, or  that  modi'ratc  degree  of  p'lwr  and  influ- 
ence flowing  from  wealth,  in  which  it  was  prudent  to 
keep  the  ecclesiastics  &  other  sole  coi-|)orations:  but  in  al- 
most every  case,  where  the  official  characrpi-  is  conferr- 
ed with  a  view  to  its  being  exercised  for  the  benefit  of 
others,  a  persona!  ch  I'tel,  or  the  right  to  sue  upon  a 
personal  contract,  devohes  to  the  successor  upon  the 
<leath  or  removal  of  the  firmer  officer.  Thus  in  England, 
tlie  King  by  operation  of  law,  has  a  public  capacity  and 
perpetual  existence,  and  may  contract  in  that  character 
for  the  benefit  of  the  public ;  and  in  case  oC  the  death  of 
the  individual  who  sustains  th^  office,  the  personal  chat- 
tels and  rights  to  personal  things  which  he  had  in  t'rat 
character,  shill  go  to  his  successor.  fFoud's  Inst.  1\5. 
21.  Co.  Lilt.  90,  a.  11  fiep.  92.  and  in  his  ca»e,  the  C^^T') 
word  successors  is  im|)Iied,  though  not  expressed  in  the 
contract;  as  in  the  instatice  of  a  recognizance  taken  In 
Court,  the  cognizor  only  acknowledges  liimsolf  indebted 
to  the  Ring,  not  saying  and  his  successors  ;  yet  the  suc- 
cessor is  entitled  to  sue  for  the  mmiey  due  upon  it.  The 
law  will  not  permit  the  executors  of  the  predecessor  to 
recover  it,  persons  in  whom  the  public  hath  placed  no  con- 
fidence, &  are  not  of  public  ap|iointment.  Here  the  omis- 
sion of  the  wm-d  successors  Joes  not  render  the  transac- 
tion void.  Upon  the  death  of  the  olticer,  his  successors 
are  comprehended  in  the  name  of  his  office.  In  the  case 
of  the  |)resident  of  a  rollegr,  where  a  statute  directs  a 
suit  for  the  breach  of  the  statuti-,  to  be  brought  by  the 
presiilent  f  >r  the  time  being,  if  the  president  sue  and  re- 
cover, the  successor  ami  not  the  executor,  shall  sue  out 
the  set. /a.  for  the  character  or  office  of  president  still 
contitjucs,     Cro.,1nc,  lij9.    4  Bac  Ah,  411,    Here  the 


l*?^  Haywood's  REroRTS. 

Mir.  1795. gf^difp  f,jjj,i  notliin.a:  of  siirrpssors,  but  fhfy  wore  impliod 
^*'~''''**^  ill  the  rmmi'  of  tli<-  offire.  If  an  oipliaii  bond  b«  ma<le  to 
tbe  rliHiiiberlvtin  <'f  Lnndon  iti  the  name  of  his  <iifice.  -ind 
lie  liiril.  his  sucrcssors  not  thf  execiiior  siiall  in'-t'tiitc 
tbe  suit  fur  ib«'  lii-nefit  of  the  oi'pb?in.  4  Rep.  63.  4  Inst. 
249.  So  in  the  present  cafe,  I  he  Cliairtir.in  or  presiding 
JiiHtiCf  a(  le<l  nu\y  in  bis  oflicial  rbararier  for  tbe  biMiefit 
of  anotlier.  the  o'])han  ;  and  lli'ius^h  ())<■  individual  who 
Siisiained  ih-it  ottii  e  be  (lend,  jet  tbe  offire  itself  slill  has 
a  le_£;al  i  xisteiicf,  and  rjiparity  to  be  exerrised  l»y  ano- 
ther. It  is  tbe  sanii-  offiie  now  as  it  was  then,  and  ri)n- 
frr«  iipiiii  tbe  individual  who  oxerri.ses  it  all  the  saine 
])owers  his  preileressor  bad,  and  that  of roinniencinj* ibis 
suit  amnngst  otjiers:  and  tlie  very  name  of  the  oflice 
im|dies  Jill  the  siirrpssors  Ihat  exer  shall  be  to  it — like 
the  ruse  of  (biireb  wardens,  who  aie  in.stituted  by  law 
for  the  be.riefii  of  pariRhioner.s,  to  transact  tarinns  kind.s 
of  bnainess  for  them,  and  so  far  as  repjarflstbat,  to  have 
a  rorporate  rapaiitv  nfroniineiicing  suits.  IF  they  sue  -i 
whilst  rliui'ch  wai'dens,  and  their  yi-arexpires  before  the 
deterniiiiation  of  the  suit,  it  shall  he  continued  by  tiioir 
siicressors,  and  will  not  abate  ;  "hicb  pro\es  that  it  is 
the  name  of  the  (ifficr,  anil  n»i  the  ailjitiict  name  of  tbe 
indixidiial,  that  the  law  reffaids.  Stra.  852.  Cro.  EL 
145,  179.  •  Lev.  177.  Gient  inde.d  would  be  the  evU 
if  the  law  were  not  sin  and  the  name  of  the  individiial 
and  niit  thai  nf  ihr  riffice.  were  to  he  p'inripally  attend- 
ed in — the  orticer  is  cuntinually  rhanajine;  by  death,  re- 
(148)  sigiiaiii>n,  renioxal  and  other  occtirrenfes — some  offices 
are  but  of  annual  duration,  and  ihi  nfficri-  must  nece.s- 
sarily  bi  renio\ed  hi  for«'  a  suit  could  be  carried  tbriiu_«:li'R. 
all  its  diflTcniit  Ht;t.a;e-- — were  his  soins;  out  of  office  t« ''♦ 
op' r,i(e  an  ab  itemrnt  of  the  suit  iustiiuted  for  the  side 
benefit  td'  anoiber,  Juslice  might  be  greatly  hindered,  and, 
in  some  instances  b''  rend'  red  wholly  im|ii)ssible  to  be 
obtained.  The  Governor  of  this  State  is  an  in- 
stanie — almost  all  bonds  for  money  due,  or  to  be- 
come rloe  to  the  public,  at*' takin  ill  his  name  as  Go*' 
Vcrnoi — there  ran  be  no  doulit.  that  either  he  of  his  suC' 
ce.-sors  must  bring  the  suit ;  ihe  law  will  not  tiusi  hi.4 
execiitois.  ^^ ere  suits  insti'iiti'd  by  biin  to  be  abated 
by  his  going  oui  ofoffite.  how  many  of  tbe  public  de- 
mands Would  he  loKt  f  His  election  is  Hiiniial  as  to  liiii^ 
his  ofliie  is  but  of  a  year's  duration,  and  it  gineiallj 
tnkca  up  a  lunger  time  than  that,  at  least  in  many  ifi" 


■I 


Haywood's  uepobts. 


171 


afanres.  bpfnre  a  suit  ran  be  tlptprniineil.  It  wnuM  beWar.  1795» 
nioiistiDUs  III  s  ly,  that  suits  shouM  aliate  in  sudi  ca-^es  •^"""'^^^ 
■ — >et  if  Ills  <:iii'(-e<<sor  is  not  inijilied  hikI  iiirliul<  (I  in  the 
naiiip-  lit' the  iiffi.e  tlii"  suit  must  abate,  tlieie  Utiiig  no  i-eal 
Plaiii'itf  to  support  it.  It  is  tlicicfore  a  imsiiion  subject 
to  no  (Joiibt,  that  wben  a  Gineriior,  p' o-siilinj^  .I'wtire, 
or  oiher  offirer  entrustetl  by  law  to  take  boiiiis  for  ilie 
bmi'lii  of  (iihers,  dues  take  tliein  arroidinj^ly,  tlion_a;ll 
witliout  making  tlieni  pavabie  to  bis  surci-ssors,  tbat  the 
siicressor  may,  notwithsianilinij,  rommence  artimis  upon 
them,  ami  in  case  of  his  death  after  tiie  institution  of  au 
action,  and  brfm-e  itsdeierminaiion,  tiiat  tfiat  artimi  may 
be  cmitinni'd  by  his  successor  wilbont  any  abatement. — ■ 
(III  England  iiowevci',  the  name  jiretixed  to  tiie  office  in 
tbe  King's  case,  is  so  far  i-egardeil,  ijiat  the  <k';it1i  of  the 
individual  abates  tin'  writ.  T  Rep.  31,  a.)  And  this 
right  of  the  successor  to  sue,  though  not  naiued.  Iiolds 
in  all  cases  except  where  the  law  dii-ecfs  oilierwise  ;  as 
in  the  case  of  guardian  bonds,  vvhicii  by  the  "th  sec,  "f 
1762,  are  to  be  sued  by  tlie  executors  ;  and  othei-  cases 
where  the  law  directs  an  assignment  to  tlie  party  griev- 
ed. Ill  some  of  wliicb  periiaps.  a  suit  may  be  ni.tintained 
in  the  name  of  tbe  assignee.  JV.  Cur.  La.  '2.9,  sec.  5.  Iiut 
sucb  bonds  are  not  suable  by  executors  griiei-aily  ; 
foi-  tlien  they  miglit  receive  the  monies  of  others,  wi'h- 
oot  security  giv.'O  to  pay  them  into  tlie  proper  iiamls  ; 
they  migiii  also  upon  iin|iroppr  motives,  either  refuse  to 
sue,  or  dismiss  the  suits  when  brought;  or  give  releases 
or  enter  letraxits.  at  their  pleasure  ;  aii'l  t  le  utmost  ron- 
fusion,uiu:ertainty  and  fraud  be  introduced-foi-  ifesecutoi-s 
shotild  once  be  acknowledged  to  be  the  proper  iiersons  (149) 
to  sue,  they  must  be  als  i  allowed  to  be  the  proper  per- 
sons to  do  all  these  acts.  And  there  is  no  fnondatioo  in 
reason  to  say,  tbat  the  omission  of  the  word  sih'(  essor, 
shall  defeat  the  instrumi  nt  entiiely.  Tlie  objection 
therefore  founded  U|ion  lliat  omission  is  nut  valid. 

As  to  the  oilier  objection,  liiat  the  naine  of  the  ap- 
prentice is  put  in  a  subsequent  part  of  the  instinnient, 
instead  of  that  of  the  Chai  man  ;  if  upon  the  piofert 
thereof  made  in  the  I'lainiift"'s  declaration,  the  Defen- 
dant had  craved  oyer,  and  demurred  for  the  variance  be- 
tween the  covenant  set  forth  and  iliat  whit  h  appeartd 
to  be  in  the  indentures,  the  objection  might  then  have 
been  fatal ;  bui  where  the  covenant  stated  iii  the  decl;ira- 
tioii,  is  once  admitted  to  bu  as  there  stated,  by  a  pica  of 


172    .  haywood's  reports. 

Mar  1795  covenants  perforniefl,  he  rannot  afferwards  be  permitted 
^"^^^""^^  to  say  there  is  no  surli  covenant ;  and  the  piuiliirtidn  of 
the  warrant  afti'iwaids  upon  the  trial  by  the  Plaintiff  is 
irregular,  althuujjh  it  is  ofien  d»ne  wlien  a  di-rlaration 
is  mislaid,  or  not  readily  to  he  roine  at,  it  bein.s;  pre- 
siiraabic  tl'at  the  declaration  lias  been  drawn  in  confor- 
mity to  it;  and  the  court  out^ht  to  take  no  notice  oF  an 
inronsistcnry  in  the  vM-itini^  itself,  discovered  upon  kucU 
an  irregular  reading — tlic^  cannot  do  it  without  a  de- 
parture from  the  reroril  and  the  issue  submittfd  to  the 
jury,  which  is,  whetiicr  the  Defendant  has  performed 
that  covenant  that  is  set  forth  iu  the  declaration. — 
3  Term  02.  303.  Doug.  302.  H.  Black.  Rep.  91.  1 
Stra.Z9B.  2  i.7)-a.  1 149.  Kidil  on  bills,  15+,  155.  6 
Rep-  45.  2  L.  Ray.  852.  And  although  the  jury  have 
found  the  covenant  to  be  in  the  words  of  the  indenture 
produced  on  the  tiial,  which  is  variant  from  that  stated  in 
>  the  declaration,  it  is  noi  to  bi'  regarded  ;  for  they  cannot 

give  a  verdict  upon  any  point,  except  that   contained  in 
the  issue  with  wliicb    they   are  charged  ;  and   then    the    i 
finding  by  them  what  tlie  covenant  really    was,   as  well 
as  that  the  covenants  were  not  performed,  is  void   as   to 
that  part  of  the  verdict  stating  the  covenant,  and  not  to 
be  proceeded  upon  or  attended  to  as  a  part  of  the  verdict 
at  all.     2  Roll's  M.  691.     2  Mo.  5.     L.  Ray.  390,  864, 
1521.     2  Rep.  4.     2  Stra.  873.     5   Ba.  M.   310.     The 
court  must  proceed  upon  tlic  legal  parts   of   the   verdict 
only,  that  is  to  say,  that  the  covenant  stated  in    the  de- 
claration has  not  been  perfornii-d,  and  the  assessment  of 
damages  for  the  non-performance — of  course  the  second  ]( 
objection  must  also  he  overruled,  and  tlie  Plaintiff  must  f, 
have  judgment. — And  he  had  judgmeut  accordingly.  j 

(150)  Lewis  r.  Williams.  •'] 

Detinue.     For  two  resolutions  of  the  General  Assem-  • 
bly  directing  certain  sums  to  be  paid  to  Lewis  and  Cnj/- 
ton,  for  services  performed  as  ofBcers   in    tlie   State    le- 
gion— that  which  belonged  to  Crafton,  had  been  sold  by 
him  to  Lewis  and   delivered    to  him — tliey   came  after- 
wards into  the  liaridH  of  Lanier,  who   died   possessed   uf 
them,  leaving  the  Defendant  one  of  his  executors,   who  ' 
by  that  means  also  came  into  possession.     JVb«   delinet ' 
was  pleaded,  and  a  verdict  found  for  the    Plainuff,   and 
ap  entire  value  and  damages  assessed.    The  Defendant 


Haywood's  reports.  473 

moved  an  arrest  of  jud^mpitt.  assi<;iiing  various  reasons,  *'="'  ^79s. 
and  these  aiiioiie;st  otiiei-s,  to  wit.  T  «t  in  tlie  writ  "he  -■^~^^^^ 
resolutions  are  described  in  |iart  by  ih'^  d.iy  of  their  date, 
and  in  the  declaraiion  also;  but  tlic  d,iy    stated   in  the 
dpclarntion,  was  not  tlit?  same  as  that  stated  in  the  writ  ; 
and  so  there  is  a  variance  between  the  writ    and  <lecla- 
ratiiin  in  a  material  part.     Also  the  j'try  have  assessed 
an  entire  value  and  damatjes  t'orhoiii  resolutions,  where- 
ap  tlicy  should  have  assessed  a  viiltie   and   damages   fort 
eacli  separaiely,  or  at  le  i--t  a  value  for  each  separately. 

One  of  the  Judges,  now  on  the  bencli.  hiving  institii  ed 
the  artion  whilst  at  the  bar,  and  drrli.iin.s;-  to  s^'wc  any 
opinion,  the  rause  for  that  reason  was  ail joornetl. 

The  paities  afterwards  roinpromised  the  dispute,  and 
llie  reasons  were  not  argued. 

N'TK — As  to  till  first  of  tilt  sp  objections,  it  seems  to  stand  but 
upon  sleiider  fdundstions.  Thr  Uet'cniLmt  slmuld  li  .v.'  cniveil  oyer 
of  the  will,  and  by  liis  pli'ii  in  abattmen'  h.'.ve  pnimed  out   the  v;iri-  / 

I  anc<-,  and  pr'jeil  that  ilie  writ  shiuild  bi  quashed  ;  but  lie  comes  too 
la'e  to  talie  arlvantige  of  this  rirciii'islHnci-,  atit-i  failing  to  take  ii  at 
tlie  proopr  time,  a^d  especially  when  lie  comes  after  verdict.  Latch 
173.  5  Geo.  1.  ch  13.  But  wi'h  respect  to  the  luttci  objection,  that 
proiiably  it.  pos»e-sed  ofsime  solidity  ;  and  as  the  action  of  detinue 
is  ;f  very  general  use  in  this  country,  it  is  lo  be  lamented  that  this,  aG 
well  as  several  other  controverted  points,  were  nut  settled  by  jndi- 
cial  decisions — for  there  is  haidly  any  evil  in  the  law  department 
more  mischievous,  than  uncertainty  in  the  m  inner  of  proceeding-  in 
courts  in  actions  that  are  in  general  and  fieqie  nt  use.  Tlie  oM  boons 
themselves,  that  treat  of  his  acti.in  when  it  was  in  use  in  England, 
leave  many  points  very  necessary  to  be  reduced  lo  certainty,  in  much 
pcplexity  ;  some  of  them  sny  that  the  writ  may  begeneral,  demand- 
ing bona  tt  catalla,  and  that  the  Plaintiff  may  count  of  three  or  m  re 
papers.  21  H.  6  29.  Some  hay  the  writ  need  only  name  the  num. 
ber  of  charters  01  writings,  as  that  he  render  one  charter  or  thr<e 
charters,  or  one  wriiinjc  obligatory  or  testam-nt,  &.C.  &c.  F.  JV.  B- 
138.  but  that  the  declaration  must  redu-  e  all  to  certainty  as  to  time, 
place  and  value.  1  Rd.  3,  20.  a.  3  If  6.  and  accordinply  it  hath 
been  the  common  pracice,  both  in  the  Knglish  courts  and  our  own, 
where  there  arc  several  articles  sued  for,  iliversi  generis,  to  name 
each  article,  and  its  value,  in  the  declaration  ;  or  if  many  individuals 
of  the  same  species  arc  sued  lor,  as  a  flock  of  slieep,  sacks  of  cc.rn, 
spoons,  and  the  like,  to  specify  the  numb, r  and  value.  NewB.  Eiit.  (IlSi) 
159.  Lib.  Int.  218  J5.  s.  4;  211.  I),  s.  2.  And  in  actions  ior  ne- 
groes, which  are  c  pable  ot  a  more  exact  drscnplioo  by  name,  each 
negro  is  named  and  his  value.  This  certainty  in  the  declaration 
however  may  be  required,  only  for  the  purpose  of  enabling  tiie  De- 
fendant to  phad  ill  Uar,  sliould  there  be  a  recovery  by  the  PlaintiiT, 
.or  a  verdict  ami  judgment  agdnst  him, either  in  all  or  in  part — for  in- 
stance if  several  things  of  the  same  species,  capable  of  precisu  identi. 
fication,  as  several  negroes  of  difi'erc-nt  n:.mes,  should  be  sued  for, 
and  a  verdict  and  judgment  for  the  I'laintifl'as  losome  of  Ihem.anda 
verdict  igaiiist  him  as  to  the  others;  if  the  declaration  mentioned 
them  only  as  s«  many  negroo?:,  and  t!ic  verdict  should  find  for  the 


1^4 


HAYWOOD'S    REPORTS. 


Mar  1795.  p'am'ifras  to  psr»  only,  not  identifyinK  tliem,  ami  ajjainsf  him  Ss  tb' 
■^^-v"^/  tlic  ot'id's,  it  would  be  impiissibie  ever  to  know  wliicli  of  the  ri'  (j+'ies 
were  recoveri-d,  !ini)  wliirji  not  ;  xnd  thotig'li  the  jury  miplit  iis-e.'.s* 
value  and  d:>m;ig<-s  for  Ihem,  and  Ihe  Plaintiff  by  iliat  mf  a' s  obtain - 
the  value  ;  yet  should  he  aftersvards  sue  f^r  part  of  the  same  nrproes 
again,  desriibing-  them  by  numb.-r^  only,  ii  wouUI  be  im|ins<iihle  for 
the  Defendant  by  producing  the  form' r  record,  to  shew  tlia'  'heir 
value  had  already  been  1'eciivi.Tfd  of  bun,  or  that  the  Plaintiff  had 
been  barred  as  to  them  ;  but  it  will  not  follow  from  liet\Cf,  tliat  the 
value  of  each  must  be  assessed  by  the  vi-rdict,  for  if  thrv  are  de- 
scribed with  sufficient  certainty  in  the  declaration,  and  named  »ith 
the  same  certainty  in  the  verdiat,  that  record  will  always  be  capa'le 
of  repelling  the  claim  of  the  Pl'inliff,  either  as  to  the  negroes  re- 
covered,  or  as  to  those  fop  which  a  verdict  was  against  him,  although 
an  entire  value  he  ass'ssed  with  respect  to  those  recovt  red.  The  • 
same  i^iay  be  said  of  bonds,  or  writings  sufficiently  described  and 
identified,  if  it  be  necessiary  at  all  to  ass-ss  a  viiiie  for  each  article, 
it  is  hi  c  use  upon  going  out  of  the  diitringiu,  some  of  the  artjrleg 
may  be  delivered  and  the  otiiers  ii  t ;  md  then  the  Shi-rff  would  not 
be  ible  to  know  how  murh  nion'  >  he  oui;bt  to  receive  for  these  ar- 
ticles, the  value  of  «  hich  Wr-re  not  assessed  ;  but  it  is  doubtful  »  heth-  J 
er  upon  the  elislrimras,  the  >heiiffcan  receive  the  v.alue  ;  for  tlie  ob-  i 
\  jtet  i>f  the  distrinffis  is  to  enlorce  the  didvrry  of 'h<"  thing  itself,  'he  J 

judirmen'  being  tnr  tliat,  it  to  be  had  in  the  first  instance,  and  if  notM 
to  be  had,  then  lor  the  value   .nd  dania'res  ;  anciently    for   the    things 
anil  I'amages  ;  and  if  not  to  be  had,  then  ill  in  damages.     Accoi-dinj'fj 
to  what   is  said  in  some  bonks,  the  ass  ssm.  nt  ot  the  value  seems  toji 
be  of  little  or  no  use  ;  for  although  it   be  assessed,   if  the   Sh'-rffre-J 
turn  upon  the  distringas,  that  the  thing  recovered  is  not  to    be   had,'; 
then  the  execu'ion  seems  not  to  issue  for  the  value  already  ass'.'ssed 
but  another  jury  istohe  called  in  foasst'ssdamasiestn  <o/o;  upnnwhiclj 
a  common  execution  for  monev  goes  'iitto  buy 'hem.   3  Bl.  Com  413l 
Jiast    r.ni  215      1  lioll.  737.  '  J-nk.  288.    pi.  23.     1  Sid    246. 
this  be  the  p  actict  in  all  circiin:siaiices,  then  the  assessment  of  valud 
in  the  fiist   nsiance  is  net  of  absolitte  iiece»sity  ;  since  it  can  have 
effec.  ai  d  of  course  an  imperfect  assessmeet,  or  one  not  made  in  thi 
usual  mmiier,  cmmot  vitiate  the  other  parts  ot  the  verdict,  which  afT 
useful  and  -iibstantially  well  founded.     But  if  the  assessment  of  dan 
ages  aft (T   the    uturn    of  the  (/wirin^os,  is   only  to  be  made    whei 
tht  judgment  hath   iieen   given   upon  (letniirr'r,   or  where   the  jur 
omit  'o  fiiid  the  v:due,  as  possihK  niav  be  ili-  case  and  inileed  seerfi| 
very  deducible  from  Plow   84  ami  283.     1  Keeble  882.  in  the  first 
which  i:  is   'eeidtil,  that  the  ji.iy   oust   find   the  v  hu  ;  in  the    laS 
thai  the  omitting  to  find  that  value,  may    be  supplied  by   writ   of  enflj 
quir> — ind  in  the  s»  cond  tlier«  isadimuirer,   the  declaration  beini 
fi  r  Several  iliii  gs  of  adifferentkind,  upon  which  'he  juilgment  is,  tlia 
the  Plainiiffi'o  rerovrr  ihe  goods  and   chaitels,   &r.   or  their  value// 
and  a  distringas  issued  to  compel  the  delivery  of  them,  and  directin|r^^ 
the  ^hc  lift' t<i  mqiiire  ot  the  damages  for  the   detention  and   costaSS 
,         .     and  ie  case  of  non-dehvpry  ol  the  goods  and  ciiafels,  then  to  enquiljr' 
(_152J     |„  yy  much  tlicv  are  worth,  .ind  the  Slier  ff  reliinied  one  value  for  al|i 
ami  d  manes  for  the  detention  and  costs,  and  there  vi'a>  judgment  aO 
cnrdi  gly.     If  this  .lisiincliiin  be  granted  lobe  well  drawn  the  resttl" 
will  be  lint  the  distringiis  upon  verdict   assessing  the  value,  is  in  l|l 
di-juiiriive,  to  C'  nipti  the  Urli  nd  itit  to  deliver  the  gooiU  or  the  Talud 
ot  -II  mmh  in  lieu  ol  ihcm.   Morgan's  Pleader  328;   l.ut    where   (M 
ju-     omit  ti.  find  the  v.diie,  and  the  jiiil(;inent  is   rendi red  upon   that'; 
iJindiiijj  ur  upon  dcmurrtr,  that  the  ditlringca  tlieii  is,  for  the  deliveigr 


•t 


Haywood's  kepouts.  175 

(jr  the  poods  or  their  value,  without  siyini»  without  what  vilue  ;  and  Mar.  1795. 
n  the  l.it'er  rase  with  h  firther  (lip.ction  to  the  Sher-ifF,  that  if  goods  s^-v-^^ 
are  not  dt-hvevel,  th.it  he  enquire  of  the  value  damaires  for  detent  on, 
cost's,  Uc  MMu  then  if  it  apnens  upon  the  Siieriff's  r'  uni,  that  tlie 
poods  !U'e  not  delivered  iii  r-'  issues  :i  stj  fa  or  ca.  au  or  it'  in  the 
forni-r  whv-re  th-  di.ilrin^ai  issues  witliout  tli  •(  cl.tus',  Hie  saiie  t  ling 
apnc'  rs  upon  the  shriff''s  return,  tlion  a  jury  in  couit  is  c  dl  'd  up'm, 
K)|)ly  the  omission  .'t'the  former  jury,  and  to  u'isess  d  images  in 
lolo-  Tli'S''  disti  ictions  will  reconcile  all  tiu-  cases  to  be  found  in 
tlie  books,  and  are  therefore  very  probably  the  true  on-s,  thou^li  it 
roust  he  conf.ssed  in  one  iiislince  ptrhups,  owing' to  a  want  ofatten. 
tion  to  these  difi'-rcnces,  ron'rirv  practice  hah  been  :id'ptrd  In  our 
courts  ill  the  e:rs' of  jWi?n'i7(  V.  Warmouth.  There  the  jury  assessed 
a  Viilue  considerably  above  the  veil  va'  le  of  the  nepro,  imt  thi-  De- 
fi- 11  Unt  before  the  aci ion  bi'ouafht,  hail  r-'-delivered  ihe  n"i;ro  to 
M'aHr-r,  who  had  iiired  liie  nPiTio  to  him  ;  ind  wh^-n  the  dialringaa 
v.i'iit  out,  he  riiuld  not  dflivet  him  to  the  Sh'-rifl',  ind  upon  his  re- 
tti-n  to  this  effVct,  and  'i  complaint  made  thait  le  a^SrSSnioni  was  too 
hi''!i;  itwiss'id  ly  the  counsel  for  the  I'laiiit  (T,  and  admitted  by 
the  court,  hat  there  inusi  now  tt  i  new  assi'ssm<.nt  of  damages  in 
into  Defer"  -Ajt-fi.  or  a  ci/.  oa  could  issue  ;  and  accir;'din;;ly  a  jnij 
were  euipanneled  in  court  to  assess  tbe  daniag'f  s,  and  did  asS'  ss  them, 
aiil  the  execution  for  !li',-  money  ir  dimages  was  issued  accordiiit;Iy. 
Hiiliftix  Oduber.  1792.  If  however  tli':  distinctions  beloie  mentioned 
irc  jisi,  then  it  would  seemto  follovf,  that  every  article  demanded, 
capable  in  its  nature  ot  a  distinct  s.-nsible  description,  and  not  making 
a  put  of  ilie  wbole  thing  demanded,  as  the  sails  of  a  ship  or  other 
ai)i>urtcnance,  should  have  a  separate  value  atBsed  lo  it  by  the  jury 
who  ii'ied  the  iiisuc  ;  to  the  end  that  should  til'  Defendant  be  dis- 
posed lo  piy  the  valiii- of  ."Oine  article  uhich  he  cannot  deliver,  he 
might  know  what  lo  pay,  and  tlie  Sheriff  what  to  receive  fb'  that  ai*- 
tide.  Although  the  s.me  precision  may  not  be  necessary  when  a 
jury  are  called  to  assess  the  valu  ■,  alter  the  r  turn  of  a  iltsirlnji^af 
issued  in  consequence  of  a  Judgm-iiit  upon  demurrer  j  tur  lii  re,  if 
some  things  are  delivered  ^nd  c hers  not,  it  will  appear  upon  the 
return  what  articles  still  remain  undelivered  ;  and  as  it  ulso  appears 
by  the  return,  that  the  Defend.int  cannot  or  will  not  deliver  any  of 
thuse,  there  will  no  longer  be  the  same  reason  for  assessing  a  sepa- 
raie  value  upon  each  ;  and  an  entire  assessment  for  the  remaini  g  ar- 
ticles will  be  wi  11  en  lUgh,  according  to  what  was  praciis  d  in  tlie 
lase  of  Grarjsbrook  and  Fnx  in  Plow.  283  The  same  may  be  sai  1  in 
egard  to  llie  cas  wli<r^-  he  jiiiy  ■;miis  m  tlic  first  initince  to  find 
the  valui'.  Vide  lil.  Rep.  854.  i  vol.  Fiom  all  these  considrrations 
it  w  luld  loMuw,  th  it  t:ie  latter  of  tiiese  ooj.  ct.pns  vv  i-^  a  vali'  one, 
land  that  the  proceedings  in  the  c  se  of  .Merrill  and  lViirmotith,&it  far 
!3s  regards  that  point,  were  not  wan  anted  by  prec  iKn  ;  but  wnether 
(these  remarks  be  founiled  or  not  on  loiid  principles,  is  to  'le  known 
only  by  the  event  of  tiituic  decisions,  none  upon  ihis  point  having 
yet  taken  place  in  tliis  cnuniry  that  have  been  ptis  rved.  The 
writer  hopes  it  cannoi  be  deemed  presum|ilioii  in  any  one  of  the 
profession,  to  have  contributed  h.s  asssiance  t  'wards  the  elucidation 
of  8  |)oint  which  ought  not  to  be  niisuinlvrsiood,  or  lo  b  held  in  un-  /■153^ 
certainl)  ;  by  e.xhibitiiig  such  ideas  is  occunel  o  mm  upon  the  re*'-  ^  ' 
cons  in  arrest  moved  in  the  case  o  Lewis  .'ua  itilliamn,  and  in  con- 
sequence of  lus  reflexions  upon  i  hem  ifierwardsj  liiey  may  render 
tL«-  researches  of  others  liss  liifficult,  and  bv  tha  mans  enable  tl, em 
to  go  deeper  into  the  subject  wnen  the  point  n  xt  ic-  u'  s  than  if  he 
had  consigned  thetn  to  ui>>livioii,  and  left  the  subject  Uarmant  until 


176  HAYWOOD- S    ItEPOHTS. 

Mar.  1795.  tlie  same  reasons  should  be  again  filed,  which  may  not   be  for  some 

Note.  — The  practice  now  used  in  oiir'conrls,  in  consequence  of  a  deci- 
sis) some  years  ;>^'0  itRdent  in.admand  pri-viiiiis  to  the  institution  of 
th'- action  of  delimit  is  required,  but  for  wh:it  purpose  is  not  clearly 
u'  dfrstnod  among-it  the  practitioners.  H  cannot  be  to  entitle  the 
Plaintiff  ti)  his  act!  n;  for  there  hive  been  severiil  decisions  that 
the  act  of  limiiatio'is  will  run  from  the  time  that  the  I'hiniiff  knows  the 
subj'Ct  of  controversy  to  be  in  the  possession  of  the  Defendant,  and 
to  he  adversely  claimed  b\  him.  Vide  Ifilhborough,  Al>nl  1792,  Ber- 
rii'n  .ifiminis'ratort  v.  Ptillam,  and  Hillsborough,  Auril  1794,  Elvich't 
JExecutorsv.  Rush.  And  this  proves  th.il  »  present  right  of  action 
may  be  in  the  Plaintiff  before  the  demand  (  fur  the  act  of  limitations 
can  only  run  from  the  time  of  the  action  ii'criiinsj.  To  siv  th  -refore, 
that  the  net  run  from  the  time  tliat  the  Defendant  has  an  adverse  posses- 
sion known  to  the  Plaintiff,  is  to  say;  thai  the  aclloii  accrues  to  the 
Plaintiff  from  that  time  ;  it  can  tlierefore  be  of  no  o'her  use  than  to 
entitle  the  Pliiiitiff  to  liis  damages  for  the  detention  and  costs.  And 
in  <iui  cour'3  is  given  in  evidence,  instead  of  being  replied  as  tor- 
itiei'ly,  to  a  plea  on  the  part  ot  the  Defendsni,  that  lie  hath  always 
been  readv,  ant!  is  still  ready  to  deliver  to  the  Plaintiff,  accompanied 
with  an  off.T  to  deliver  instantly  in  court  i  or  with  a  pr'Ver  tha'  the 
court  would  appoint  a  dav  for  the  ilelivery.  Vide  2  Mo-  Ent.  427. 
1  Bro-wn  149.  1  Ro!/.  M.  574.  fil.  4.  pi.  5.  Sai/er's  lata  of  damages 
69.  In  which  case,  if  the  plea  were  admitted  to  be  true,  or  not  de- 
nied by  replyinir,  a  former  dem  .nd  undrefusal,  and  proving  the  same 
on  trial,  the  Defendint  was  not  li;ible  to  dam  iges  for  the  detentiim  ; 
hut  if  our  practice  be  accounted  for  this  way,  it  will  remain  still  a 
matter  of  difficulty  to  assign  the  reason  why  it  if  given  in  evidence 
upon  the  plea  nf  ;ion  detinti ;  unless  it  may  be  said,  that  our  practice 
requiring  this  eviilence  in  every  iiist.ince,  tikes  away  the  necessity 
for  that  oM  plea  and  replication,  and  rcid-rs  the  pleidings  more 
simple;  and  that  the  courts  have  gone  bevond  the  extent  and  pur- 
pose of  'lur  rule  of  practice,  where  they  have  ordered  nonsuits  upon 
the  deliriency  of  prool  of  the  demand,  which  they  must  necessarily 
judge  of  themselves,  am!  not  leave  to  the-  jury  to  conclude  upon,  as 
tliey  were  used  lo  do  upon  the  evidence  given  on  the  replication.— 
For  how  the  jury  beinj;  charged  only  will',  the  is^ue  detinet  vel  iion, 
must  either  answer  in  the  affirm  itive  or  negative  ;  and  surely  tliej'  , 
could  ni't  say  not  iletinel,  merclv  t>ec  lUsetliere  wasnodem  muI  proven, 
and  tlureby  bar  tiie  Plaintiff  firever.  li  the  want  i;f  such  proof 
could  niitjus'ify  them  in  spying  non  detinet,  tiien  it  is  not  m  .t-rial  su 
far  as  reh.tes  tn  the  issue  with  which  they  nre  charged,  for  them  to 
consider  whtlier  the  evid- nee  offered  amount-  to  the  proof  of  the 
fact  intended  to  be  proven  h\  it  or  n"t;  and  .s  it  bi  longs  nut  to  them 
to  sav,  whethirtlie  Plaintiff  shad  be  noiisU't^d  or  not,  if  he  is  non- 
suited .'t  all,  it  must  be  under  the  opinion  ol  the  c  iirt  formed  upon 
conclusions  drawn  IVoin  the  evidence  given,  and  tliat  not  material  to 
the  issue.  So  that  so  far  as  respects  a  nonsuit,  the  evidence  is  given 
necessarily  to  the  court,  to  be  juilgi  d  of  ;.s  t  ■  its  an.uu  t  only  by 
them  i  which,  whether  it  be  more  convenient  and  ptop.r  than  the 
ancieni  mode,  or  more  consonant  to  con.^titlltion.ll  principles,  may  be 
a  matKr  of  some  speculation.  But  if  given  in  evidence  only  in  place  of 
the  olil  plea  and  replication,  and  the  jury  are  to  dit  rmine  upop 
liejirini;  it,  whether  in  fact  there  was  a  d'  mand  and  a  reCusiil  on  the 
part  of  tiie  Defendniit.  and  according  to  their  conclusions  upon  that 
(154^     head,  to  proceed  ornot  to  assesss  damuges  for  the  detention,  then 


UAYVVOOn's    REPOUTS.  177 

^  Uiere  woul3  be  Jess  cause  perhaps  for  impeachinfr  our  rule  of  prac-  Apr.  1795. 
'-  tice  ;  bm  this  woiiU!  effectii:il!y  ovevihrow  tlie  practice  of  nonsuiting  s^^-v^** 

the  Plaintiff,  upon  tillier  a  real  or  suppoised   (U  ficieiicv  in    llie   pruot' 
,    of  tlie  demand.     Siinpose  the   Plaintiff'  refusts  lo  suffer  a   nonsuit, 
and  requires  a  vcrdid  nnlwillisandinf;  a  deficiency  of  rironf  of  tlie  de- 
mand, liavini;  q-iven  lull  prooftif  his  property,  and  (lie  DelV-nd.iut's  de- 
tention— will  the  court  direct  the  jury   to   find  nnn   detinet  ?      If  in 
suppnrt  of  the  cinirl's  opiniim.  the  D^fendint  should   demur  to   the 
evidence,  and  thorehy  ;idniil  the  facts   to   be   true   as  svvorn — would 
the  court  say.  they  were  proper  evidence  of  a  non    ilctinet,   or  a.  dis- 
proof of  the  detinue  laid  in  the  declaraiinn,   and   adjudge  the   cause 
.■igainst  the  PlainlifJ',  although  there  was  other  competent  proof  fully 
and  completely  adequate  to  the  proof  af  liie  contrary  in  all  rsspects? 
And  besides  what  julginent  could  ihe  court  give  upon  such  a  de- 
murrer ?     Could  lliey  siy  that  tlie  evidence  was  incMinpeteiit  to   the 
inaintonance  of  the  issue  he  had  undertaken  to  support,   and  that  he 
uhould  he  therefore   nonsuited?     This   is   stating  tlie   matter  in  the 
most  favorable  point  of  view  of  which    it   is   susceplible  in    suppoil 
of  the  practice,  perhaps  more   favourable   than   the    rules  of  law  will 
'  permit  ;  for  it  is  generally  laid   d'uvn.  tha'  tlie  person   deinuiring   to 
evidence  must  :i(lmit  that  the  circumsfinces  offered  in   evidence,   do 
amount  to  proof  of  the  fact  intendrd  to  he  proven  by  them,  and  insist 
only  thai  tlie  f.icl  when  proven,  is  in  law  incompt  t  jiit ;  and  then  the 
Hcfendant  could  no!  demur,  but  by   admitting  ti:c   deinaud   and   re- 
fus  I  ;  upon  which  admission,  the  couit  cmdd  not  nonsuit  for  want  of 
demand  and  refusal  ;  but  if  the  I'luntiff  would  nut  agree  to  a  non- 
suit, and  thai  could  not  be  pnnMired  by  means  of  a  demurrer  to   evi- 
ence,  then  it  would  seem  thai  the  court  have  no  (lOwer  of  nonsuiting, 
nd  of  course  that  ihey  oiiglit  noi  to  heav   evidence   with  that  view, 
undertake  to  judge  of  its  amount  for  that  iiurpose  ;  and  that  thfl 
vidence  .vhicli  is  the  subject  of  this  investigation,  wlien  givi  n,  must 
e  for  the  purpose  of  enabling  the  jury  to  decide  upon  the  justice  of 
llowing  or  disallowing  damages  for  the  detention.     Ideoquxre. 
Not.';. — A  variance  between  the  writ  and  declaration  Is  iiit.il  in  ihii 
State  even  alter  verdict.     Stamps  w   Grurc.^,  i  ffawks  102.     Gliatonv 
Jtmriircr,  2  /hv.  Hep.  i  Sr.. 

HlLLSliOilOUGH,  APRIL  TERM,  1795. 
State  T.  Bionifield  Long. 

Haywood  and  Wir.r.iAMS,  .lodges,  were  of  opinion  that  the  taking 
which  is  to  constilule  a  'eloiiy,  must  be  a  lrespa^s.  Ashe  and  Ma- 
cat,  Judges,  thounht  u  borrowing  with  a  fraudulent  intent,  might 
be  the  ground  of  a  felonious  act. 

At  tliis  term  the  Defendant  was  indicted  in  the  com- 
non  lorin,  fur  stijiiliii!^;  a  mare  of  one  Samuel  Parks,  in 
lie  county  of  Randolph. 

It  appears  upon  evidence  on  the  trial,  that  the  Defen- 
laiit  was  a  stranger  to  I'arks,  hut  came  to  \m  house 
onie  time  about  the  sixtli  ul  December  last,  oH'ering 
limscUtobo  employed  as  an  oversew;  and  aft«r  rt- 


178 


MAYWOOD'S    TlEPOnTS. 


^P""' '^^^•maiiiinj?  on  Pa?/is's  plantation  three  or  fniir   days.  It« 
^•^'"'^'^^  hnrmwid  ttii"  mare  in  question  nf  Parks,  to  ride  to  llio 
Iiousp  of  one  Candles,  vvlm  lived  «b  lut  fmir   mijoq   rrmn 
Furks's,  in  tlie  same  r<iiinly  ;  and  \\c  railed  at  Candleii's 
arrordiiiglv,  ridiiis;  llie  inai-e  ;  bnt'tVoni  Candlcs''s  went 
directly    citr,    anil  in  {\\<t  days  and  a  lialf   airivid    at    a 
lioiise  in  the  <nniity  i>f  Linndn,  at  tlie  disfanre  of  i.-iijliiy 
miles  fi-.iin  Caudles''s.     Upon  this  state  of  the  evidence, 
it  was  insisted  l»\  Jones.  Sidiritor  General,  that  tlie  De- 
fendant WHS  ernilty  of  lelonj — he  aliened,"  tliat  ihn'  there. 
.      ^^     Mere  seinn-  dicta  in  the  old  honks,  atitl  even  someadjmlg- 
-'     ed  rases,    which  nuike  a  taking;   tiiat  would    anioiMtt  at 
least  to  a  tiespasK,   lo  be    an  essential    ins^Tedient  in  the 
constitntiiin  of  leluny,  \e\  tliat  the  snoee  modern  author-' 
ities  lia\e  deciib'tl  in  many  in-tances,  and  nniforinly,  tliat 
a  hotrowing  or  liiriiif;  «ith  a   fiandoient  intent    not   tn 
retiiin  the  pi'opprl_\  to  the  owner,  hot  to  ronvej-t  it  to  his 
'  own  use,  and  a  stihsequi'iit  going  off  with  the  pro|>erly. 

aitd  sriiing  it  or  imt  eeinenint;  it    to  the  owner,    will   a- 
liiount  to  lelony  ;  and  thnt  in  such  ca^cs  tlie    Court  will 
cliarge  the  jury,   to  enquire,    whether  the  hurt  "Wing  or 
hiring  was  «ith  Mich  Irainlulent  intention  ;  and    if  they 
foiitnl  it  to  be  so,   then  to  find  the    prisoner  guilty.     In 
support    of  this    position,    lie    cited  1  H.  P.  C  90,  s.  f, 
91,^.  10.  Kelyng  24.  81,  3S,  Leach   O.i,  231,  2G6.  335, 
213.     Jtfr.  Potter,  for  the  prisoner,  e  contra,  insisted,  tliat 
a  felony  could    not    he   gi-nunded   on    a   delivery  by  iho 
ow  nei-  to  the  liorro\\er.  hut  it  must  be  a  taking  wiiliout 
the  consent  ol'  t!ie  nvxner.     He  cited  4  Bl.  Com.   230,  I 
H.  H.  P.  C.  f>n4,  jOG,  50r.     And    with    respect   to    ihi»^ 
poii't,  tliere  was  some  difTerence  ijC  npinion  in  the  Court 
and  in  their  charges,     .lodge  Malay  seemed   to  iiulim 
that  it  was  f.'luny.     Judge  Haywooii,    that   it  was  not.' 
And  the  Jury  luu'id  a  special  \ertlicl  as  lollows  :    "  "I'hc 
.  juior.s  iiovN  Kore  sworn,  Ujion  liieir  oath  say.  that  (kti  lhU| 
sixih  day   ot   !)•  leoiher.  in  the  >eaf  of  our  Lord,  iTOi^ 
in  the  county  if  Uanilolph,  in  this  district,  Samuel  Parln 
sen.  Was  in  possi  -^-.lon  of  the  mate  in  the  indicinienl  mciif' 
tioiied,  as  of  his  proper  goods  and  ch.ittel.s  ;  and  that'ot^'' 
that  day  the  aloiesaid  Brnnjield  Long,  in  the  s:)i(l  indict*^; 
iiioiit  mentioii''il,,di(l  hoiiuw  the  aloresaid    mare   of  ili^ 
said  Hamucl  Parks,  to  ride  to  the  house  of  Ju//n  CaiidL 
Jiving  in    tlie  aforesaid  comity  of  Uandoljiii.  alnoif   loij 
miles  from  the  house  of  the  said  Parks,  :u  d  ilial  he. 
SMii  Jirojiifield  Long,  was  toJiavu  returned  (he  mare  tl 


HAYWOOD'S    REPOWTS. 


irs 


tlio  said  Samuel  Purks,  aftrr  riding  lier  tliitliei-;  and  the  Apr.  1795. 
juro's  aforesaid  fiittlier  flii(i,  that  the  said  BromJieUl  ^■-''^'"^^ 
Long  did  ^it  tlie  said  mare  into  his  possesi-ion  hy  the 
meatis  .ifmesaid,  and  did  lide  her  tc»  Ihi-  house  nf  ihesaid 
Candles,  and  that  he  di<l  not  return  her  to  tlie  said  Sam- 
uel Parks;  hut  fi.rthwith  rodf  'he  siid  mare  into  the 
county  of  liiiircdii,  to  !lie  distanci'  <i(  ei,!i;h;y  inih--  frntn 
the  h"iis"  of  tlie  saiil  John  Candles,  and  there  sold  li  r  to 
one  Andrew  Hoyle,  as  his  own  pi'oporty.  The  jiimrs 
fnrtlier  find,  that  tiie  said  Browjield  Long  did  rmt  talie 
the  said  mare,  or  pjet  her  into  his  possession  otherwise 
than  is  herein  liefme  staled.  And  the  jnrois  aforesaid 
fnrthoi-  say,  tiiat  tliey  do  find  'hai  the  said  Lon^.  at  'he  (15&) 
time  when  he  so  _(;()t  possession  of  the  afori'said  mare  as 
hefore  stated  from  tlio  said  Parks,  did  the  same  with  a 
fraudident  intention  not  to  return  the  sai<l  mare  (i>  the' 
sail!  Parks,  but  to  sell  and  dispose  of  iier  as  aforesaid  ; 
Luf  wliethtr  upon  the  facts  aforesaid  found,  tlie  said 
Bromfcld  Long  he  guilty  of  the  felony  stated  in  tlie  in- 
dictment, the  jurors  aforesaid  now  here  swoi'ii  arc  alto- 
getiier  ignorant,  and  pray  ihe  achice  of  the  ('oui't  here 
tiiei'enp(Mi ;  and  if  the  Court  shall  he  of  opinion,  upon 
llie  facts  above  stated,  tliat  the  said  liruinjield  Long  is 
guilty  of  the  said  felony,  then  the  said  jurors  do  find  him 
guilty  ill  the  mannei-  and  form  as  stated  in  the  indict- 
ment ;  hut  if  upon  the  aforesaid  fads  above  stated,  thi; 
Court  liere  shall  be  of  opinion  that  he  is  not  guilty,  thcM 
the  jury  say  that  he  is  not  guilty." 

This  special  verdict  afterwards  in  this  term  Was  ar- 
gued by  J\Jr.  Jones,  for  the  Stale,  and  Jtlr.  Potter,  for  the 
prisoner.  Jlr  Jones  cited  the  same  cases  as  before. — 
lie  observed,  that  one  of  the  Caiirt  in  giving.the  ciiarge, 
had.  stated  to  the  jury,  that  the  atiiliorilii  s  wliirh  went 
to  implicate  the  prisoner  in  the  guilt  of  felony,  were  mo— 
dcrii  cases  ;  that  the  eldest  of  them  w.m  in  1775,  and 
that  many  of  them  were  since  the  revolution  in  tiiisroiui- 
ti;y  ;  that  all  tlie  ca^'s  previous  to  thr.se  cited  from  Leach, 
were  the  other  way  ;  and  that  in  these  cases  the  Court 
liad  gradually  dcjiarted  irom  the  ancieni  law,  and  the 
law  itst  If  had  thcrehy  gradually  become  more  and  more 
severe,  and  this  was  owing  to  the  circumstances  of  the 
cunntry  in  which  tliey  were  adjudged,  the  lower  classes 
of  the  people  iliere  having  none,  or  but  litile  jiroperty, 
nd  being  numerous;  the  higher  orders  on  the  other 
hand  being  rich,  baving  preponderating  influence  ii5  th** 


180  haywood's  heports. 

Apr.  IWS.govei'iimont,  and  rcgaidlciss  of  the  oflicr  ordrip,  liad  pix- 
^"'"''"'^^  vailed  in  extending  ilic  sec  urity  of  tlie  law  fir  (lie  pro- 
tection of  proppity  ;  fliat  pi'iliaps  also,  property  in  that 
country  being  of  rnoie  dilUculi  proti'rtion,  in  proporiion 
(o  tiiP  poverty  and  the  nunibei-  of  the  pour,  was  one  rea- 
son that  liad  its  influence  in  efTiTtinc:  these  changes  ;  and 
that  as  the  same  circumstances  do  not  exist  here,  there 
is  no  necessity Yor  the  sanie  rigour;  and  that  tlie  old 
law,  as  laid  down  in  Hale  and  tiie  other  books  cited  for 
the  prisoner,  ouglit  to  he  adhered  to — as  to  which  re- 
marks, he  said  he  wouhl  obsei-ve,  that  these  new  cases 
arc  not  intr'oductive  of  any  new  law,  or  atiy  altei'alion 
of  tlic  old,  tiiey  only  ascertain  with  more  precision  v\hat 
the  old  law  really  was,  and  that  one  of  the  cases  atiduced 
to  establisli  the  doctrine  he  contended  for  on  the  part  of 
(i^'^)  the  Stale,  was  cited  from  ICdtjng,  in  the  time  of  Charles 
the  second,  81,  and  was  founded  on  a  decision  in  the  time 
of  Edward  the  third;  and  as  to  the  conclusions  drawn  . 
from  the  comparative  ciicnnistanci's  of  England  and  this 
country,  if  there  were  (ewer  temptations  to  commit 
fi'ands  here  than  Iher-c  wei'c  tjierc,  iher<'  was  more  turpi- 
tude in  committing  thi'in  hci'e  than  ther'c,  and  of  course 
the  crime  siiould  he  treated  with  more  severity  here. — 
He  concluded  with  praying  judgment  of  death  against 
the  prisoner. 

The  Court  thought,  as  there  was  a  division  in  the 
opinion  of  the  Judges  now  present,  it  was  proper  that 
this  special  verdict  should  undergo  the  considii'atiou  of 
all  the  Judges :  tjiey  lh(^re(■^)re  ordered  the  prisoner  to 
be  recommitted,  and  that  the  Clerk  of  this  Couit  trans- 
Hiit  a  copy  of  the  special  verdi(  t  to  each  of  tlie  Judges  ) 
of  this  State  ;  and  that  they  be  rt-quesied  to  relurn  their  | 
opinions  to  this  Court  at  the  next  tei  ni. 

At  the  next  term,  October,  1795,  tlie  opinion  of  alltlio. 
Judges  was  had  on  this  special  verdict  ;  the  Judges 
Ashe  and  Macay  were  of  opinion  it  was  felony  ;  Wit- 
XIAM9  and  Haywood  that  it  was  not ;  and  the  prisoner 
was  recommended  to  mercy,  and  obtained  his  pardon. 

NoTK. —  The  criminal  codr  above  all  otIierB  sliouM  U-ave  iiotliiri(r  to 
ihe  discretion  of  the  Court  or  jury,  but  should  be  reRulated  «3  fur  us 
the  nature  of  things  will  adniii,  by  certain  and  fixed  nil-:,  nut  dilli- 
cult  to  be  understood,  ami  incaoai)le  of  belnp  constmed  b\V:iy.  The 
rule  laid  down  in  C'Jce,  Hale,  Hawkins,  and  Blucksionc,  that  th.  re  mu«t 
be  a  taking  invito  domino;  and  thai  tlurc  can  be  no  felony  wilhoul  a 
trespass,  is  a  (iljin  rule  cumprehcnsibli  by  every  capacit),  and  in  its 
nature  not  easy  to  be  misconstrued — it  leaves  no  latitude  t.i  the  Judge, 
nor  any  to  the  jury.     The  plain  enquiry  is,   n 'ortions  tskinjf — bnt 


Haywood's  ueports.  181 

should  the  question  be,  did  he  borrow  or  hire  with  an  inient  to  slcal  }  Apr.  ]"95. 
That  being-  an  act  of  the  mind,  and  to  be  d'scnv*  red  by  rirciiin>l:ir'.  s,.«<~y~^> 
ces  onlv,  I'-aves  Ihc  f:ite  of  the  pris(inei'  en'irely  in  the  discretion  of 
the  (;ourt  and  jury.  I'l  ihe  case  of  n  n):in  of  g-ood  chiiiMcter,  or  one 
they  wen-  inclined  to  (Kvor,  a  boiro'.vinff  and  sellin.i^  afterwards  as  his 
own,  might  easily  be  di-em^d  innoc-nt,  or  at  least  exciis.ible — he 
might  b.  siipposeil  to  do  it,  with  a  (ksijjn  lo  n  ake  a  trood  b  .r;rain  for 
the  owner,  and  to  defiver  tlie  money  to  hini;  or  from  ronfiilence 
of  his  assent  to  the  art  when  made  arqiiainted,i  r  were  he  acrjnanitecl 
with  the  CTCumstances  which  d.iermined  tie  co:iduct  of  the  borrow- 
er ;nd  the  like;  when  before  the  V^ain."  Court  and  jnry,  another  of  i 
but  indifti-rent  character,  or  where  lliey  were  not  disposed  to  favor, 
for  borrowintr  anrl  then  sellini;,  <:r  (or  brrrowlnp;  and  not  reluinin.c:, 
mipht  be  sentenced  to  d.  alb  ;  whi'-li  difTen^nce  of  decision  would  be 
owinij  1(1  no  uliier  circuir.siance,  but  t'i:.l  of  the  discrttion  exercised 
.by  thr;  Cour;  and  .jnry.  IJnt  this  diserition  drawintf  tlie  hvi-s  if  men 
into  its  voitcN,  can  never  liave  pbni-  if  the  old  rule  le  adiicrod  to. 
The  I'ldc  contended  for  on  the  part  of  the  Stati.-,  v.  :,ts  an  arbitrary 
power  over  the  lives  of  tin;  ci'i/.ens  in  the  C'.url  and  jurv-^-.  power 
that  ou:.;lit  not  to  be  vesli^d  any  where — which  it  m  Hi:  the  honor  of 
the  Court  t>  disown  ;  and  v.  hirji,  in  wii.il' ver  fovm  or  sliape  it  may  ft-o\ 
endeavour  to  insimi.-rte  itself,  sh-uld  forever  I'C  rejirted  W'th  manly  V.^''°J 
firmness  by  the  Jildt^es  of  a  free  country.  The  disjr.  t  on  of  the 
Court  is  the  ninrtal  ei.emy  of  all  satVty  ind  security  to  individuils.— 
It  is  t'  e  engine  that  all  p^nvernmei.ts  protcs  \\g  to  he  regulated  by 
laws,  have  u<id  to  elude  tiem,  win  ii  the  oppre.ssion  of  an  individual 
is  the  object.  Besides,  the  old  aiitlmrilivrs  art  fuiin<leil  upon  better 
reasons  than  the  cases  cited  frum  Leach — I.iws  are,  or  oil.:;ht  to  be,  ri- 
peroiis,  only  in  proportion  to  the  maKnitud-;  of  ofienc>-.s,  and  the  dif- 
ficulty theie  is  in  prevesiiinjj  them  ;  but  v/it)i  rcsonable  care  in  the 
owner,  an  oflence  of  this  V;iiid  can  never  happm — let  him  iii4  lend 
his  proper!)  to  a  man  he  doe;',  nut  know,  or  in  whom  he  c  tmot  s:if;ly 
confide,  itnd  he  will  never  be  deceived  in  this  nianiirr  ;  but  if  he  will 
lend  il  to  a  stranffer  he  does  rot  know,  and  tl  at  strnn^er  deceives 
liim,  he  should  blame  his  own  iinpnidence — he  has  contributed  toli'ie 
deception  himself,  and  he  has  no  rij^lit  ta  expect  t!.e  liw  to  animad- 
vert with  the  same  severity  on  the  conduct  of  tiie  dccelvei',  as  If  him- 
self Inad  beenperfectly  passive.  The  man  who  has  not  trii>ted  his 
prop'  riy  into  precirious  hands,  and  who  i.]i)C:i  what  is  usual  to  secure 
it,  and  yet  has  it  invaded  by  a  takin.i;  awny  without  bis  consent,  is 
surely  more  to  be  rejjarded,  than  (iie  man  who  has  lent  it.  In  the 
one  case  the  owner  contributes  in  no  shape  to  the  oilence,  in  Ihe 
other  it  could  never  have  been  committed  had  not  ilie  owner  put  it  in 
the  power  of  the  prisoner  lo  commit  il  ;  and  .surely  in  point  ot  reason 
and  Rood  sense,  there  is  amply  uiillcieiit  to  warrant  tlie  distinctior\ 
made  in  the  old  cases.  1  did  s.iy  to  Hie  jury,  and  [  believe  still,  that 
the  mi'dern  cases  cited  on  (lie  p.Hit  ot  tlie  State,  have  jirown  gradual- 
ly into  still  greater  and  griatcr  severity,  owinj^  lo  the  circunist-tnceti 
•if  England  and  the  British  people  at  the  tiines  when  they  look  place. 
Ill  every  coiintry  as  wealth  accumulate^  poveily  a!s,>  increases,  si, II 
forming  a  wider  separation  and  (jrealer  distance  between  the  difleriiil 
classes  ;  and  (he  natural  consequence  of  this  evt.ry  where  is,  that  ilie 
hand  of  government  clinches  the  sword  of  ven..;eance  against  the  vio. 
Itttion  of  the  rii^his  of  projierly  W:tli  the  strunijer. grasp,  and  .stiikes 
with  the  less  compassion  ;  and  it  isob\ioiislj  rciiiarki.ble,  that  e.aclt 
of  the  succeeding  cases  of  those  cited,  has  jjone  still  furllier  and  wi» 
der  of  the  ol.i  rule  than  the  former  i  so  much  so,  that  if  the  latter  of 
llrem  should  be  presented  as  a  proposition,  wil'!';':t  tiic  fVrmer,  to  fa. 


482  ifAYWUOD's    REPUlitS. 

Apr.  ir95.  miliarize  (lie  wiml  and  prepare  it  for  the  receplion  of  the  luttvr,  wo- 
>.^^v^»/  shonld  bp  stuiiK'il  and  l'*ject  it  without  hesiLi'lnn— such  fur  instance 
'  as  lii.it  where  a  ift  ui  hirtU  a  pnst-cliaisr,  and  not  relinninfj  it.  «:ii  la. 

ken  up  a  year  afterwards,  ami  convicted  I'f  f'p'ony.  This  at  fir?t  view 
wonlrl  appear  hnrrihv — h(i\v  mmy  circinisinMccs  mi|;ht  havr  ncciii'- 
ved  to  pr  vent  the  return  within  ih;it  time — the  viry  neijl'5''"ce  aid 
idl.  dsposilioi  of  lilt  man  mijjht  have-  caused  hi- U. day.  The  d' - 
parHiri'  tiom  the  old  rule  «hen  lirst  mtde,  s:  ■  mt-d  to  cnme  sonearil, 
that  tlie  dc'parluro  did  not  strilii-  tlir-  mind  with  much  fiTce — the  m-x' 
departure  came  so  near  tlie  last  precedent,  that  lliat  was  not  nuu'li 
remarkable,  until  at  lenjjth  tl  c  old  rule  heconi'  s  <  nlirely  laid  asiile, 
and  I  lie  m  idem  authorities  boldly  iirmi'innc  d  t<i  he  the  genuine  rules, 
nnd  to  he  iToperlv  explaiiaturv  and  eorrec  ve  f  them — Hien  is  the 
time  when  iho  III'.-  of  the  suhj  cl  or  ciiiS::  n  is  exposed  t  >  ihe  atlrmpO 
of  evil  meii,  .^1  d  there  is  no  helper  at  h  iid  to  pritecf  them  -this  is 
the  priifjrtss  (fa  depariure  fro  n  mcient  wi !!  istihlished  nih  s.  The 
smullrsi  reflection  upon  it  is  sufli'-ient  to  convince  us  In.w  dan^^eroUH 
an  experiment  it  is,  either  to  abandon  ihtm,  or  to  extend  i hem  by 
'  construcl;on  to  cases  not  maniftstiv  and  obvoiisly  within  them.     This 

is  tile  onK  cperalion  the  cases  cited  have  upon  my  mind,  and  they 
confirm  nie  in  the  opinion  tiial  tlio  old  rule  s'lould  be  m  st  s.crcdiy 
reKard  d.  If  «c  once  bepin  to  dep  .rt  IVoni  it,  «k-  shall  gradual!)  in- 
clude in  the  definition  of  filon'ons  slealin:,',  acts  that  ari-  at  present 
deemtd  very  (iir  from  itscomiir.liension,  until  at  length  perhaps,  tlic 
,  »  boundaries  between  fraud  and  felnny,  sha'l  be  no  loni.^er  discernable  ; 
l59J  and  the  lives  of  many  citiz  ns  sacriiiced  inipro.^cily,  bet'ine  the  law 
c;.n  be  again  brou  ht  hack  to  it-  ancient  simpliciiv  and  certainty.  It 
is  true  the  case  ii  Ktluu^,  p.  81,  does  i.ccud  wi'.h  the  cases  \nLrae.h; 
but  tiie  case  in  Kelvng  is  but  his  own  exira  jndici  d  opinion  ;  and  that 
opinion  loo  apansi  an  adJM(:;;ed  Ciis;-  lepurt-d  by  liinis  If  in  pat;'  21; 
in  which  litter  case,  he  himself  and  two  oHier  Jud);es  concurred  — 
This  opinion  of  his  si  en.s  not  at  all  to  iiave  ben  ii'jticed  as  law,  or  as 
ore:ilinf;  »  dount  with  respect  to  ihe  law  in  subsequent  author-  ;  and 
therefore  there  is  a  'Undant  reason  to  Meal  ii  at  this  day,  as  tiie  sidi- 
tiry  efFusi.n  of  his  imaginarnni  ;  he  h-msclf  in  his  judiri  d  ca|iacily 
has  con'lradicled  it,  tmd  all  fullottinp  aulhors  of  any  celebri'v,  have 
passed  it  by  in  sdence. 

Note. — Vide  VoJJ  v.  Hamilton  d  Hamilion,  ./V.  C.  Term  Rep.  31. 

Riiberf.soti  V.  SliiHft. 

.\  slave  wrongfully  taken  out  of  the  pDSsession  of  A,  and  sold  to  0, 
and  while  in  the  possi-ssion  of  B,  sold  ijy  A  to  C,  may  be  recovered 
by  C,  in  a  suit  brought  in  Ins  own  name. 

TIlis  was  ail  Hctiini  bioiigiit  fur  the  rerovory  of  a  ne- 
gro btiy.  It  miiicaicd  ii|h)|i  cviili-nco.  tliat  olil  Jf'illiam 
iitone  Wiis  llic  owner  ol  tlii"  buy.  HtitJ  fhiit  bis  si»ti  Juhn 
Stone  being  iibiiiii  to  iiwive  to  Soiilb-Cirolinn,  bud  t;i>tti*ti 
till  Uity  jiiti)  hi  •  |i'issi'S^iiiii ;  nnd  that  be  sold  liiin  us  bis 
pioperty  lo  tin-  lici'i  nd.inl  ;  itiid  thiit  the  Dt'lendaiit  had 
rclainod  the  pnssi-.s.sion  tif  hint  as  bis  (iwi»  c\»t  since: 
thai  after  the  sale,  and  whilst  Sliiarl  had  bim  in  jiosses- 
aLun,  the  old  niHti  demanded  iiiiUi  and  (Jicii  sold  him  by  a 


IIAYWOOU'S    REPORTS.  18tJ 

l)ill  of  sale  oxcrtitpcl  Ut  Robei'lfton  ;  that  tlien  EnJcWsnn  Apr.  1795. 
iIcdiuimIi'iI  till-  buy  of  the  DcfiKlaiii,  aiul  siiuii  afffi-  '-^'"^'*«^ 
lji'ou_;;lit  liiis  sjiit  ill  his  own  iiiunc.  Tin- cxri'ijt.lun  tukcn 
at  llic  ifial,  and  lifierwai'dH  i"  aijcsi  of  Jiul.u;mi'iit,  was 
ifiat  tills  iicqi-o  whtii  '•old  l)j  llic  old  man  to  tin-  Plaiii- 
liflT,  wa-i  a  cliLse  in  aciion,  and  noi  Jfaiisfi'i'alMO ;  and 
lliat  tlic-rci'in-  Ituherlxon  cniM  not  i;iainiiiin  (iiis  action 
in  liis  o«n  nami'.  .Vc.  WInjte  citi'd  for  tlio  Defendant 
Com.  Di^.  Virbo.  Msignmeut,  ami  1  Dae.  Jib.  157.  and 
(Jo.  Lit.  211,  a.  SGG.  a.  General  Davie,  for  the  PUiniiiT, 
contt'odcd  tiial  Ui'"  lu't^ro  in  (|iioH(ioti  was  tiol  a  I'liose,  in 
action,  for  a  cliosc  in  action  iiirans  oi;ly  a  thinu;  or  sub- 
ject of  dis|)ii(r.  so  sittiad  d  iliat  thr  pcf-on  enniled  has  no 
oilier  means  of  olitiiiiiins^'  the  jiOsscs'-ion  but  by  an  action 
at  law,  and  excludes  ihe  idea  of  rccjuition,  or  t»elting  a 
lawful  possession  by  liie  mt  of  takinf;  it  \Mtii<nit  llie  itn- 
inediali-  aid  of  law — as  in  ih<'  case  of  a  bond  or  otlieriii- 
slriinient  for  the  j-ayiuent  of  uioney,  the  obli.ijee  could 
not  lake  die  nioiuy  '.xithoct  llie  assent  of  llie  obligor  tlio' 
it  lay  bi'f<iVe  liiin.  and  brliiis  no  other  means  of  obtain- 
in;;;  Ilie  nioney  bn!  by  r>  suit  at  law  :  this  (iefniitioti  will 
not  apjily  to  cases  of  speeifu*  jirojierly,  in  wliicli  the 
owner  is  not  abs<dnlely  driven  to  a  suit  ai  lart  to  gain 
possession,  bat  may  i:'.ke  the  thing  in  dispute  iii<o  his 
jtnssession  whenver  lie  can  iind  it.  This  circunistauce 
coii'-tituics  (be  dilTeroiice  between  a  chose  in  action, 
\\lii(h  cannot  he  taken,  and  a  subject  (d"  property  that  v'°") 
may.  He  cited  2  IL  JJh.  45,  46,  and  the  opinion  iii  Jus- 
tice Ihdicr  ill  4  Term  Rev.  3t().  In  wiiidi  opinion  it  is 
said,  that  the  rule  of  a  ciiose  in  actiuii  not  heirg  assign- 
able, is  iioi  founded  on  (;o  d  sense:  and  that  tbc  law  at 
this  day  will  [notoct  the  it-sigoineh:  of  a  chose  in  action, 
so  as  ii(it,to  suifer  (lie  assignor  or  bis  contracts,  lo  defeat  * 

111-  iinpiiir  i!  ;  and  that  mily  so  niucli  of  llie  rule  iiow  re- 
mains as  rfsjiects  (he  firm  <,f  aciion,  and  diiccts  thai  it 
must  he  carried  on  in  tlie  name  of  Ibe  assignor,  and  that 
is  now  liioked  upoti  in  Courts  ol  I,a\v  to  be  curried  on  foi 
tbc  beiiejii  iif  the  assignee.  lie  a.rgned  tliat  ilic  rule  now 
Contended  for  by  Mr.  >>7ji/ie,  %vas  ado]>tcd  in  Knsilaiid  in 
very  ancient  limes,  when  the  Lords  were  rich  :.i.d  piiw- 
ei'ful,  and  the  other  orders  of  men  pool'  and  indigent,  be- 
fore the  dilfusioii  of  |»i*opi'rtj  introduced  by  cominercCt 
and  at  a  time  whrn  it  mighi  leasonably  be  appnheiidcd, 
that  the  influence  of  a  powerful  Baron,  being  an  as- 
'sigiiee,  might  ho  tis  weighty  fi^r  a  pour  D«f«odaiit,  »v«» 


1S4  Haywood's  kkvorts. 

Apr.  1795.  tlioutjli  he  nil.«;)it  li.ivc  justice  on  tiis  siflc;  but  since  the 
^^^'^--z  circuinstiuircs  I'f  thi'  people  have  been  ampliorated  by  an 
iiifiii.x  (iT  wealtli,  aiiii  a  r(iiiscr|iiciit  i-quality  i.f  fortuiies 
ami  (if  \veic;lit  in  tlic  (jiivprnnicnt.  the  iiitliifiic  c  of  the  no- 
bles liaili  giatliially  (Icciined  in  Eii};lancl,  until  it  is  liow 
no  longer  an  object  (if  legal  jeabnisy,  and  the  rnle  against 
!!ie  assignment  oi'  rlmses  in  acli(ni  hath  been  gradually 
I'elaxcd  and  fuund  to  be  of  lc;is  use,  until  it  has  come  to 
he  tliouglit  not  only  useless  but  inconvenient.  In  this 
couiitty,  these  ciicnnistances  whicii  gave  biitli  to  the 
rule  have  never  existed,  miicji  less  can  they  be  said  to 
exist  at  this  time,  \viien  tlieec  is  a  jiei feet  equality  amongst 
,  the  citizens  of  tlie  country  in  respect  of  their  legal  ad- 
vantages. There  is  even  less  reason  for  the  rule  here 
tiiaii  in  England  at  this  day,  and  ihercf'ore  beside  (he 
point  (hat  the  negi'o  in  dispute  did  not  agree  witli  the 
(lefinilion  rif  a  chose  in  aciion,  he  said  it  migiiT  be  very 
justly  doubted  wiiether  the  rule  itself  was  surb  an  one 
as  our  law  would  [Tcognize.  He  argued  further,  that 
the  circumstances  of  the  ancient  villains  in  gross  in  Eng- 
land, and  of  our  slaves,  were  similar  in  most  respects  ; 
and  tiiat  in  tliu  limes  of  villainage  in  England,  a  man 
could  not  in  law  be  disseised  or  dispossessed  of  bis  vil- 
lain in  gross.  Co.  Lit,  306,  307,  Lit.  s.  541.  In  those 
books  it  is  laid  down,  that  a  man  may  be  dispossessed  of 
bis  ward,  but  not  of  his  villain  in  gioss.  And  the  action 
lie  nntivo  habeiulo  used  for  the  recovery  of  villains,  wa? 
very  siniilar  in  its  piinciples  to  the  action  of  detiinie 
(161)  that  we  use  for  the  recovery  (if  slaves.  And  if  in  Eng- 
land a  man  could  not  be  said  to  be  dispossessed  of  bis 
villain,  tlic  same  ought  certainly  to  be  th&  case  with  a 
slave  here.  And  the  dwut-r  cannot  be  legally  said  to  be 
dispossessed  of  bis  slaxe,  then  it  will  follow  (hat  al- 
tliougii  at  the  time  of  this  Siile  to  the  plaiutif)',  the'  defen- 
dant had  actually  liic  possession  of  the  negro,  yet  tiie  le- 
gal possession  was  in  Stone,  and  so  the  negro  rn)t  a' 
chose  in  action,  e\en  according  to  the  idea  entertained' 
of  it  by  the  delcudant's  counsel.  Tiiis  distinction  i^ 
founded  in  nalurc,  and  the  dinVrencc  between  tliis  spt  • 
cies  of  property,  and  every  (ither  kind  know/i  to  the  ava- 
rice of  men.  A  flock  of  sheep  or  a  limse  is  a  passive 
aubject,  the  arbilr.iry  will  of  ihe  possessor  designates  il.s 
condition  absolutely,  eiiher  as  the  properly  of  another, 
or  his  own.  But  aslaic  is  a  ralinna!  creature,  posses- 
scil  of  a  will  capable  of  directing  his  actions,   and  the 


haywoou's  reports.  185 

law  will  not  leave  it  in  his  power  t'l  chanaje  the  absolute  Apr.  1795. 
pro|ieriy  of  lii'<  owier  iiKO  a  niBi'c  lisht  nf  ai'tion  wiieri-  v^-v^^ 
ever  lie  j)! 'Hsfs,  liy   induing  away  an  ,  p<tfinj<  himself 
under  tli<"  roof,  "r  on  tlie  |iUot  iiion    if'a  strantjcr-. 

Mi:  fVhyte. — Ah  (o  tiie  di'liiiition  of  a  chose  in  action, 
as  ^iveo  l)y  rliccdunseloii  tlii*  other  -iide,  ilie  case  j>'  Com. 
Di^,  Slates  a  lease  of  Hlirc|)  fur-  two  >e,ir>,  and  a  Sale  of 
the  lessor  du  iiig  these  two  yeu-s,  and  hild  ill.  In  that 
case,  ihc  'cndie  of  the  sheej)  nf'er  I  In  W'>  yars  'night 
ha»e  (aken  them,  jet  were  they  lield  io  b>  chases  in  ac- 
tion Co.  Lit.  2;4,  a.  states  a  rijjhi  of  entry  into  lands, 
and  says  ii  cannot  be  assigned  ;  and  io  that  case,  the 
person  having  a  rigit  to  enter  need  not  firing  his  artioti, 
he  may  take  |iossession  when  he  pleases,  withm?  the  im- 
nie.lia  e  assistance  of  c!ie  law.  Ah  to  the  rule  iis^  If.  (he 
objrct  of  it  is  to  repress  litigionsness,  and  that  is  as  »ie- 
cessary  here  as  in  Engiand.  ur  at'y  where  else.  As  to 
the  anfhiirilies  relative  to  ilie  villein  in  gross,  he  was  not 
appriz-d  of  iheir  being  inteniied  lobe  prodni'ed,  and  was 
therefore  not  prip:tred  to  answer  flieni ;  bnf  it  seemed 
to  him,  that  the  ras.  s  of  lilleios  in  gro^s  in  Et«^l;!iid  an- 
cieiiily,  and  of  the  slaves  of  this  conntry.  wrvt-^  widely 
diflVrent.  A  villein  in  gros  was  an  inherit.iufe,  and 
passed  hy  deed,  and  the  action  lo  r'Cover  him  was  a 
writ  of  right,  or  a  vx  i-it  de  nativo  habeiido.  And  the  rea- 
son why  a  man  cnild  not  ehcr  m  -  ippo-.e  hini-.elf  dis- 
seised of  a  villein  in  gros-..  perh  .p-.  might  be  oung  to 
tliis,  that  he  was  not  aliiwed  to  bi'iig  an  .issize  or  writ 
of  entry  for  a  villein  in  .-.r' ss  ;  hut  must  betake  himself 
to  the  writ  de  nniivo  habcndo,  mid  ni'  le  especirifl\  i^s  in 
the  case  of  a  ward,  viiei:  uie  Wrtr<l--hip  disconsidered  (162) 
as  a  chattel  in. crest.  Co  Litl.  says  he  mav'  be  dispos- 
sessed, and  doubtless  ihis  flistj.iction  arose  from  the ejr- 
cuinslance  of  h'ing  ;ible  to  bri.ig  a  p-rsonal  anion  in 
this  case,  rtben  in  ih'  case  of  ihe  villei'i  in  gross,  it  was 
otherwise;  and  the  lawyers  were  obliged  to  use  erms 
expressive  of  the  real  qnalilj  nf  the  thing  to  be  reco- 
vereil.  VVtietiier  these  conjectures  however  are  ne^ethe 
tl'Ulh  or  not,  it  would  be  a  strange  doctrine  to  adopt  at 
this  day,  that  a  man  could  not  be  dispossessed  oi'  his 
aia«e,  after  so  uiai.y  actions  of  trover  and  deiinnehave 
Uecn  brouglit  for  the  recovery  of  slaves,  and  afer  it  has 
been  coiisidered  for  so  great  a  length  of  t^me,  that  an  ad- 
verse possession  of  slaves  lor  the  lei.gtii  of  time  ineiiti- 
ooed  in  the  act  ri\'  Assembly  concei'uing  limitations  of 
24 


188  Haywood's  tieports, 

Apr  1795. aclinns,  will  bar  the  nwner's  artinn.  How  can  this  be 
^'^'^'^"^^  ail)  liingci-  t'Rerted,  if  the  legal  (lussi'ssinn  continues  al- 
ways ill  the  owiiir,  iiotwitlistamliiij^  a  (lispossessioii  in 
fact?  Surli  A  dtirtiiie  as  tiiis,  would  overturn  tlie  act  of 
limitations  witli  re^p  ■/•(  to  slave  pruperty  entirely,  and 
wonid  re'idei'  it  more  iiiserure  than  any  other  species  of 
projiertv  wliatrver.  He  therefore  could  not  believe  it  to 
be  foMiidi'd  (in  pi'iiici|ile,  and  ronclnded  with  praying  that 
.■judsineiit  nii};lit  be  arrested. — Curia  advisnre. 

Anil  at  October  term,  1795.  this  cans,  was  again  ar- 
gued, as  I  have  uiiders.inod  from  the  counsel,  and  there 
was  a  Judgment  for  the  plaiiitifT,  per  Judges  Ashe  and 
Macat. 

Notk. — It  is  certainly  true,  that  accordinj;  totlie  notimis  of  the  an- 
cient law  relative-  to  villeinajf,  a  man  c  luld  ni)t  be  dis!)Ossessed  of 
his  vi'lciii  ;  lie  ca  ir>t  .)i?  d'Ssei--(l  cr  'ii>ipos«es-ed  of  m  incorporeal 
heredila...'  m.  Salk.  666.  Co.  LitI  32.  And  sucli  wa<^  a  villein  in 
grog's  Co  Litt,  121  Gilh.  on  Ten.  74,  7S.  Co.  Lilt.  306,  6.  But 
the  naiivo  liabendo  ■■'T  •  'e-  iiihlancf  lo  the  writ  of  detinut ,  though 
ii  h<d  Vh-  [u^.- nee  quis  delinrnt ;  it  was  directed  'u  the  Siieriff 
RP'in!-!  i.oiiTSiii  .11  r  .11  ],  .in!  was  r- movable  ';y  pone  or  liberlate 
probanda.  F  fv  11.  186,  187.  Ii  wa>(  comesiibh'  liv  the  vilUm  him- 
self, by  :  1-  i.-MviM(r  ii,s  villein  .ge.  F.  N.  B.  190,  186.  And  the  aim 
of  the  nallvo  hdbendo  is  asfamst  no  one  but  the  villein  himself,  not 
against  any  iln.il  P'  ^u  ,  in  whone  serve,  or  actual  possession  he 
may  b  •.  F.  N.  B.  191.  Sa//ji'a«317,  319.  For  tuis  latter  purpose, 
other  writs,  coiibidenng  the  vilKin  as  an  incorporeal  hereditament, 
were  used. 

Noxr. Vide  Morgan  \.  Bradley,  3  ffawhs  559.  Uttdmany  liiddieh 

^  Uuwka  i9,  which  latter  case  seems  contra. 

In  Equity. 

The  Court  adopted  this  rule,  where  an  injunction,  bill 
and  answei'  ha\e  been  read,  and  the  injiinciioii  dissolved, 
and  no  reitlication  nor  commissions  within  two  terms 
after,  the  bill  shall  be  dismissed  for  want  of  prosecntiun  j 
andariordiiigl}.  many  iiijunnion  Uill'^  were  dismissed  at 
this  term  foi-  waul  of  |iruserution  upon  the  above  rule. 
Also  in  a  case  before  the  (>onn.  where  ilie  comidain- 
^  ^  ant  had  died,  ii  was  said  li\  .Vr.  .Moore,  and  conceded 
per  curium,  that  since  the  act  of  1786.  if  theconijilainant 
dies,  the  defendant  is  not  thereby  out  of  Court,  oi  the 
suit  ab'ited ;  but  it  is  continued  in  Court  for  two  terms 
next  followitig,  by  the  force  of  that  act ;  and  at  ciUier  of 
these  two  III  xt  teiins,  complainant's  repriscniati.es  may 
come  into  Court,  and  move  to  be  mad"  parlii  s,  and  be  ad- 
mitted parlies  on  record  to  cwry  on  tbesnit.:  and  within 


Haywood's  ueports,  1S7 

these  two  terms,  tliere  i-  no  ii«c-ssii.v  for  a  bill  of  revi-  Apr.  1795 
•oor — but  if  the  party  applying  is  not  the  le^iil  represen-  ^-^"■^'^^^ 
talive  entitled  to  carry  on  tho  suit.  Iiis  .ippliijiiion  may 
be  contmverteil  liy  the  other  p;>r  y.  and  drawn  into  tlie 
judgment  (if  the  Court  by  plea,  as  well  as  il  ''lete  was  a 
bill  of  re-ciro?-.  And  the  Court  seemi  d  to  incline,  that 
if  the  interest  of  the  roniplainant  had  g'me  bj  devise  or 
will,  or  other  legal  transfer,  to  any  otlp  .  p  i --on  than  to 
liim  w  ho  is  constituted  by  law,  that  then  sm  1.  person 
must  state  thnt  circumstance  to  the  Court  in  a  bill  to  be 
brought  for  tlie  purpnse. 

SoTz.— Vide  Mery\.£ranclh  post  o69.  Anonymous, post  4S1.  DaU;.- 
xg,t  V.  2  Hay.  296. 

Mann  Patterson  v.  Mark  Patterson,  et.  al. 

Tenant  ill    tail  in  remainder,  is  entitleft,  unler  the  act  of  178i,  \-, 
the  fee.     Quere,  by  HayTuooJ. 

Complainant's  grandfather,  by  deed  duly  executed  and 
registered  in  proper  time,  conveyed  to  Complainant's  fa- 
tiier,  a  tract  of  land  of  six  hundred  arid  i'.irty  acr^  s,  tt>- 
him  and  tiie  heirs  of  his  b^idy.  reserving  lo  hiinseif,   the 
grandfather,  a  life-estate  therein.     He  coutinueil  in  pos- 
session  of  tiie  laml  and  ofthe  dred  till  his  deatli.  which 
happened  in    178G  ;  and  the  bill  stated  that  Mark  I'at-    , 
terson,  his  executor,  liad  taken  possession  of  this   deed 
amongst  the  other  papers  found  at  the  old  man's  death, 
and  had  suppresed  it.     The  hill  was  take<i  ■pro  confesso, 
as  taJIark  Patterson,  for  want  of  an  answer.    Theothci' 
Defendants  answi  red  and  cmifessed  the  deed,  and  dis- 
closed strong  circumstances  to  induce  a  belief  that  ..Var^ 
Patterson  had  gotten  the  deed   into   his  p'lsscssion  and 
suppressed  it.     He  was   the  lieir  at  law.  and  upon  tliid 
case  a  doubt  was  conceived  how  Murk  Patterson  sliould 
be  decreed  to  convey,  whether  in  fie.  or  t.>  liim  and  the 
Leirs  of  his  body.     The  act   of  1784  declares,  that   all 
persons  who,  at  the  time  uf  p:issing  this  act,  were  seised 
or  possessed  in  general   or   special  tail,  should  he   held 
and  deemed  to  have  a  fee ;  but   in  this  (a«e,  the  donor 
-was  seised  of  a  life-estate  in  tin-  lands  at  the  time  of  pass- 
ing that  act,  and  tlie  doubt  was,  Mhethcr  (he  remainder 
man  could  be  said  to  be  seised  ofthe  estate  tail  at  that 
time;  this  remainder  was  vested,  and  h.td  it  depended 
upon  a  particular  estate  fur  years,  the  freehold   would    (lfl4} 
Itiive  passed  at  the  time  of  iivcry  and  seisin,  or  what  in 


188  «AYWOOD>   REPORTS. 

Apr.  1795. this  couHtry  is  eqiii\Hlitit  HipppIo.  mnde  to  thft  tenner, 
•^^'""^  siiid  fl'cii  (he  remiumler  m.iii  would  have  heeii  sctHcd  in 
tail ;  hut  in  thi>4  rasf,  the  free  hold  liMviriir  not  been  passed 
to  him,  but  rcmainintr  iii  tiie  ttnaiit  for  life,  it  seemed  to 
some  of  the  Co'ir',  that  the  donee  was  not  si'ived  in  tail 
as  the  art  requires,  and  then  thi'  estate  tail  was  not  ron- 
veited  into  ^t  fee  by  the  operaiion  of  that  art  :  but  the 
other  Jnd_e;e  beinaj  very  rLar,  not  withsiandiii(»  this  doubt* 
that  the  a<t  had  vemed  n  fee  in  the  tenant  io  tail,  in  this 
case  it  was  ruled  hesitanter,  that  he  should  totivey  to 
CiimplHiiiiiii!  ill  fee — ami  so  it  was  decreed. 

Sed  queie — For  Hupposi-  it  had  been  to  the  errand  lather 
for  life,  reinaindei'  to  the  son  in  tail,  remaitider  to  ano- 
ther in  tail,  this  wouh'  h^ve  been  a  lested  remainder  ia 
both  ;  and  if  the  remainder  man  in  tail  i-  to  he  seised  in 
fee,  merely  because  Ms  lemainderis  \estrd.  hen  the  lat- 
ter remainder  man  is  eqiiaily  entitled  to  the  fee  with  the 
former,  and  the  o|iei'atioii  of  the  art  woiiltl  tie  ab  nt-d.  to 
vest  a  fee  in  the  lader  remainder  man,  ami  de-.tio\  his 
interest  at  the  same  time,  by  \estina;  a  fee  in  the  former; 
but  if  'he  meaninjs;  of  the  art  he,  that  an  estate  "ail  in 
poHses'-ion  only,  shall  beronveited  into  a  fee,  there  seems 
to  be  no  snrh  absurd  consequence  ;  'he  estate  of  inheri- 
tance, it  is  true.  Would  be  rendered  unalienable  during 
,  the  lifetime  of  the  tenant  fi>r  lile,  and  the  law  allows  of 
the  same  thing  tor  the  ronvenieuce  of  families  in  execu- 
tory de\ises;  antl  the  same  roiitenience  may  justify  such 
a  construciion  of  the  act — to  thai  de_^ree,  that  if  in  the 
case  supposed,  the  first  remainder  man  had  died  without 
issue,  in  the  lifetime  of  tenant  for  life,  the  land  micht 
have  gone  over  aceording  to  the  limitation  of  ihe  donur, 
and  the  second  remainder  man  have  becnme  seised  in  fee, 
by  \Jrine  of  ilie  art.  Whether  it  \va«  not  the  intention 
of  the  L>  Ki^'i^t*"^  to  leate  such  a  power  of  disposal  in 
the  ownei  -  of  fee-simple  lands,  iii  perhaps  worthy  of 
some  enquiry. 

NoTv. — In  the  above  sl»temen'  of  this  ca«i-,  there  seems  lo  be  some 
circunitami!  omitted,  as  the  (!<•.  <\  was  rejii-tercd  'liere  w  u  no  :tbso. 
lute  lie  '  ssity  lor  «  deer  i  .  Tlit-  r.  porter  li;i'ks  'lie  met  B  it)  fiir  a 
dicr  e  »H>'  rc'-:isi<in<  il  by  ■•:  desrnction  ol  llie  regis'er  in  the  time  of 
the  wur,  which  rendered  it  impossible  to  procure  a  copy  o(  the  re- 
gistered deed. 


UAYWOOn's   REPORTS.  I8d 

V.  Airinj^toti  et  al.  Ap'.  1795. 

The  poroliaser  of  :i  c/iose  in  attion  f'T  a  v.'iliiable  cunsideration  will 
be  protect,  d  in  Eqmty. 

The  bill  sfRtf'd  in  subsfnnrf.  thiit  iln"  ffj^io  In  ques- 
tion wa*-  {jivcn  by  old  Jrrhigton.  vow  ilcrrjtscil,  tc  liifl 
daiiglitii ,  OIK'  <if  iho  D-  reiiitHPts,  now  niiitried  to  anotlier  (165) 
of  tlio  Di't'eiidaitts  :  iliiu  she  ai'd  lici-  liusbatid,  foi'  u  \a- 
lu»blr  (iiiisidrratjoii  paid  lo  tlieni  ity  tlx'  Complain -M'St 
had  by  dt-ul  poll,  as^iftiicd  at  it  liajisfm-ed  thei'-  ii'.iest 
in  SMid  mgifi  to  -he  Coiiiiilninan'  ;  t'la?  old  Jinijigfon, 
the  faihtr  <>l  flu-  Defendants,  liii'l  died,  lea\ing  Me,  De- 
fendant, Srrivgton.  I  is  exerntor  ;  that  lie  had  gotten 
possession  of  tlie  riejrro  ai'd  detained  him  ;  that  tlie  Com- 
plainant, in  'lie  name  of  ih'  teiiie  an<l  l>ei-  hiisliand,  liad 
brought  detinue  againt  tln'  D<fendant,  Jirrington,  to  re- 
cover tlie  itegi'o  ;  and  that  tin  fenie  and  her  liii»hand  be- 
ing indigent,  and  in  insolxent  r ircuinslanres).  Ihi-eatened 
to  enter  a  letraxit  in  the  suit  at  law.  or  to  fxrciite  some 
writing  to  the  Defendant.  Arrivgton,  that  would  operate 
at  law  as  a  discharge  of  tlie  action.  The  D'  f< ndanis 
deninri-ed  to  this  bill  ;  and  upon  aigiinient.  the  Coiiet 
said,  this  is  a  chose  in  action,  piti< based  for  h  v.ijuahle 
consiileratjon  paid  bv  the  Coinphiinant,  ami  a  Court  of 
Equilj'  will  piDfect  it.  If  the  D-fenilant  could  prot  iire 
a  II  iraxii  fiom  the  FlHintiffs  at  Law,  or  a  release  of  the 
artioti  from  them,  the  Coinplainanis,  who  carry  on  the 
suit  in  their  own  name,  would  be  totally  defeated.  If 
the  Court  of  Equity,  who  ought  to  protect  tliis  axsign- 
ment,  being  for  valuable  consuleealion,  would  not  i'lter- 
pose  as  prated  by  the  bill,  the  Complainant,  as  tlr  bill 
States,  would  be  liefented  by  a  fraudulent  conirix  ,<i  c.  be- 
tween the  vendors  v>b  •  have  recei\ed  value,  aiid  tlie  De- 
fendant who  kni>ws  the>  have.  This  wmld  be  a  fraud 
in  the  very  fice  of  the  rules  of  a  Court  of  E'|uity  on  the 
subject  of  assignmeiits.  The  Coiirf  tlieM-fire  were  ot 
.  opii'iou,  the  hill  was  pi'0|ter,  and  ought  to  be  ans.  ered, 
and  overiuied  llietiemuiiet,  and  ordered  the  Defendants 
■to  answer  i<ccoe<llii;;ly. 

NoT».— FtWe  a^/nc/f.  Cnm.  44*^.     1  T/-rm  Rft>.  "G 


19U  uaywood's  rbpokts. 

Apr.  1795.  'flic  Executors  of t.  SHmuel  Oldliam. 

Wliere  an  executor  declares  as  executor,  tliere  he  nthkes  f>ri>fert  of 
his  letters  ti--.tamcntary,  and  they  are  (o  :«  "iijectcd  lo  in  pleading 
upon  oyer  of  I  hem,  or  by  demurrer,  if  any  df.cl  appears  in  the 
declxl-alion  ;  and  ..tier  th.-  first  t.  rni,  fSey  net-il  not  be  produced 
again.  But,  whir.- an  cxecui'ii  tliclftrts  upon  his  own  posse.ssion, 
the  fact  of  executii'.sliip  forms  |):\it  of  h'Stnl  ,  «nil  nnist  be  proved 
upon  the  trial  liy  the  production  of  the  loiters  irslameniary  them- 
selves i  unless  they  have  been  lost,  when,  perhsps,  other  prool  of 
executorship  will  be  admitted. 

Detinue  for  iipgrnes  in  the  Plaititiff's  own  |)os>e»sion. 
Tiie  PlrtiiitifTprtveil  tlie  wenrh  I'roin  whom  tliese  negroes 
were  (Icscendeil,  to  have  hern  'he  |ir<iiifrty  of  the  tfsta- 
tor;  that  she  roiitinued  to  be  his  pr»piMt}.  ;«iul  w.«s  in 
hi.s  possession  at  the  time  of  iiie  (lenih  ;  fhA  after  hi« 
death,  slie  came  into  the  posseKsion  of  the  Pl.tintifT.  as 
liis  executrix  ;  that  slie  whs  biou(;ht  from  Virginia  se- 
cretly hy  a  man  who  had  m^irried  her  i!-\ughter,  and 
disposed  of  by  him  to  the  D  fendaiit  :  thiit  they  were 
demanded  of  the  Defend. mt  previous- to  the  ct)iiimence- 
jnent  of  this  action,  who  confessed  he  had  three  boys  in 
Ills  possession  which  were  the  children  of  that  wench. 
This  h'  ing  all  the  evidctice  piodnced  by  'he  plaintiflV 
Mr.  Moi)re,  on  the  part  of  the  Uefenl mt.  imu-d-  that 
ggx  the  Plaintiff  mighi  be  nonsniied,  for  want  of  the  letters 
'  testainintriry  to  prove  the  Plniiitifr's  exerniorship  ami 
qualification.  Et  per  curiam,  after  much  argument,  if 
an  executor  det  lare  <ts  executor,  then  in  ilie  declaration, 
at  (he  end  ihercid',  he  makes  a  proffert  of  his  letters  tes- 
tametitarv  to  (he  C^ourtt^ud  ihen  in  contemplation  of 
law.  thiy  are  in  Court  during  all  'hat  term,  according 
to  Wijmack's  case,  in  Coke's  Reports;  and  during  that 
term,  the  Defeiniaut  may  demancl  oyrr  of  Hieni,  and  on 
their  being  producid,  m^y  cither  deny  them  by  plea,  or 
by  plea  shew  that  tltey  ire  invalid,  as  not  being  granted 
by  ilie  proper  jurisdiction,  or  for  other  defects :  or 
if  the  <leclaiatioM  does  not  set  forth  a  pro|)er  jurisdiction 
for  granting  'hem,  and  tiiey  ap|ii'ar  to  be  granted  by  the 
improper  jurisdiction,  he  may  demur;  but  if  oyer  is  not 
then  craxed,  and  advantagi  taken  for  want  of  the  pro- 
duction, or  for  any  defect  in  ihera,  but  the  part>  defen- 
dant pleads  in  cliief,  or  any  plea  p.isterior  in  point  of  or- 
der to  ilicse,  tlial  question  the  plaintiff's  right  to  sue— 
then  the  letters  are  admitted,  and  4he  Plaintiff  at  tbeepd 


havwood's  reports.  491 

of  the  term,  may  taki-  tliem  out  of  Court,  and  necH  not  Apr.  1795. 
produce  tliein   any  njitrc.      But  wIumc  tlic  executnrtle.-   ^•^'~-'''>»^ 
cliircs  upoti  liis  ()v\n   possession,  and   oot    as  exi-cutor, 
tlion  lu-  ilocs  not  make  a  prolcit  of  the  Ict'crs  tcslamen-  > 

tary  in  his  ilerlaration,  and  the  DeiViiiIanf  cannot  ci-ave 
oyer  and  tai^c  advanfaqc  ol'lhi'in,  or  foi-  the  not  pi-oduc- 
ing  them  hefore  he  pleads,  as  in  the  othei  cases — and 
therefore,  i;i  this  latter  case,  the  I'l.iintifr  in-ist  shew  his 
right  to  recover  on  the  trial,  and  this  he  cannot  (!■>  hut 
by  shewing  'he  |iro|ierty  to  he  in  liinias  executor  ;  proof 
of  which  nuist  be  made  by  shewing  the  lc!t<"s,  and  rheii 
the  Defendant  may  cnntest  them,  not  havi'ig  li'-forc  ad- 
niiitil  them  hy  pl.-ndiii;;;  wid  for  this  'he  Coin*'  cited 
Butler  48.  ^246.  i08.  ZJ^els.  M.  626.  Hib  38,218. 
S^nf/x.  37,  38.— .Vr,  miliams,  for  the  Plaint  tf,  'hen  of- 
fered a  cojiv  of  the  testator's  will,  aftest"d  b.v  thi-  Clerk 
of  the  proper  county,  and  liis  clerksliiji  rciftilarly  certi- 
fied by -tiie  |)resiiling  Justice,  under  the  title  of  Chief 
Justice  of  that  Court;  and  at  ilie  end  of  this  cupy,  it  was 
also  cenihed,  that  the  PlaintitT  had  t;iven  bond  according 
to  law,  and  taken  t)ie  oath,  and  dad  a  certificate  for  ob- 
taining the  iirohaie  in  due  form,  but  she  had  not  any  let- 
ters (estamentary  to  prodnce  ;  iind  h'/  insisted  he  had 
sufficiently  jiiovcn  the  executorship  of  ;'ie  Plaintiff,  the 
oo|»y  of  the  will  shewing  slie  was  appointed  executrix, 
and  the  Clerk's  certificate  shewing  tihe  had  taken  ui)On 
herself  tiie  execution  thereof;  and  that  it  was  not  the 
practice  eiliier  in  Virgitiia  or  in  Ibis  State,  actually  to 
take  our  letti-rs  testaim-ntary  ;  and  even  in  England,  C''^^.' 
where  they  are  taken  out,  the  exi'cutorsliij)  ma.>  'ir  pra- 
\en  by  a  copy  of  ttie  will  and  piohate.  Duller  247,  or 
the  probate  in  the  Regi^iter's  book.  lhdlerQ.45,  246.  But 
per  curiam,  it  is  a  mistake  to  say.  that  letter-  iestainen- 
tary  arc  not  taken  oni  in  this  Slate  and  Virginia  ;  they 
arc  often  taken  out  wlu'o  suits  are  to  be  commenced  out 
of  the  state  <n'  county  where  the  testator  resided.  The 
Plaintiff's  executorship  is  to  L-c  proven  hy  lestiinotiy 
produced  by  himself,  and  the  letters  themselies  must  be 
prodoied,  the  issuing  of  them  being  the  final  act  that 
makes  him  a  complete  legal  executor.  Until  they  issue, 
his  executorship  is  inciioate  and  i:nperfect,  and  in  em* 
bryo  only,  lialile,  notwithstanding  ll>e  intermediate  acts., 
to  lie  (juesiioned,  and  all  furtlicr  progress  slopped.  If 
the  executor  could  prove  the  letters  to  be  lost,  tlien  per- 
haps iic  might  bu  admitted  to  a  proof  of  the  execnturship 


t§2  haywood's  REPoar^. 

Apr.  1795  by  a  probate  or  copy,  or  if  the  exerntorship  were  to  be 
'"^"■'"^m'  pro^^'n  b>  a  iliiid  imtsoii,  thi-n  |ierti;ips  siifb  praof  ini,^bt 
be  allow  iltle  ;  or,  under  sune  circiiinitanci's,  evi'ii  proof 
less  Siitisfarropy.  And  this  fcfoiirijes  the  cases  cited 
froin  BiiUer  245,  2+6,  and  is  proven  to  be  the  true  doc- 
trine by  the  pass  vs^e  in  the  saim-  book  108,  where  he  rites 
1  Liv.  25.  Cro.  Eliz.  1 3,  and  the  case  of  Lewis  4"  Brag, 
Mich  1 6.  Geo.  2.  Theiefore  the  proof  offt-red  in  the  pre- 
sent case  is  nor  sufficient,  and  she  must  produce  tne  let- 
ters, unless  she  ran  prove  tliem  lost  or  de»troyed  by  ac- 
cident. Mr.  IViUiams  then  saying  be  could  not  maks 
such  proof,  the  Conct  recommended  ihc  witlxlrawiiig  a 
juror  ;  and  a, juror  was  withdr.iwn  b*  consent. 
NoTB. — Vide  Berry's  adm'rs.  v.  Pultiam,  ante  16. 

Patterson  ef  «i.  lejjatees  of  Patterson,  deceased  v.  Mark 
Patterson  and  Scllaes,  Defendants. 

A  person  made  h  party  defendant  m  :i  bill,  who  is  not  coinpel'able  to 
answer,  and  against  whom  no  relief  is  sought,  may  have  the  bill 
dismissed  as  to  liim, 

Tlie  bill  stated  a  will  made  by  the  deceased,  contain- 
ing dispositions  rif  ih-  testalof's  proper-ty,  which  went 
to  th'  Defendant,  Mark  Pa'terson,  or  at^least  a  conside- 
rable pai-i  thi-i'eof.  in  f;<s  •  of  the  deceased's  intt'stacy. 
It  sta'fd  iial  Mark  Patterson  and  Sellars  (who  it  did  not 
appear  had  any  ioterest  in  ttie  destruction  of  the  will) 
had  franiliilently,  and  wi'h  intent  to  secrete  the  sane, 
gotten  possession  of  the  said  will,  and  scrreteil  ii.  Sei- 
zors deinnried,  because  t:ie  charge  in  the  'till,  iftciie,  sub- 
jected him  (<>  a  criminal  prosecution,  and  that  he  was 
therefore  not  hound  to  answer,  and  there  was  no  relief 
prayed  in  the  bill  as  lo  him. 
('jgg\  I  was  ae.nui'd  at  tin-  i)ae.  thou.sjii  it  miglit  be  true,  that 
he  was  not  compellab!"  •©  answer,  toat  was  nrt  peoof  but 
that  he  mig'>t  be  continued  in  Court — for  if  ihe  Ctiin- 
plainant  C'lolii  prove  toe  t  harge,  he  mi.;;ht  have  a  deci'ec 
agaiiisl  Sellars,  noiwitlistanling  he  was  not  obliged  to 
answer  ;  and  for  this  was  citeti  MUford  64,  65.  2  Ve&. 
i4().  E contra,  it  was  argued,  tint  it  w.is  admiltid  he 
conid  not  be  compelled  to  answer,  and  that  as  tlie  bill 
prated  no  relief  against  him,  there  could  be  no  reason 
for  ketping  him  any  longer  in  Court. 

Per  curiam. — It  seems  a  little  contradictttry,  that  this 
oian  might  he  compelled  in  a  Ginir^   '>f  Law  to  answe;- 


Haywood's  REPOKte.  193 

this  charge  upon  (latli,  ns  he  ini,;^ht  bf  by  1777,  c.  2,  s.  62.  Apr.  1795. 
and  iliiii  .»  Court  nf  Equity  sliDiild  not  Iihm-  as  lar.f;e  a  '-^"^''^"^ 
powi'i-  for  till'  dincovi-i'y  of  siii'h  a  fraiid  ;  but  svitli  some 
reluctance  the  Court  allowed  the  demuncr,  and  dis- 
missed the  bill  as  to  Sellars — foi'  no  relief  being  |irayed 
in  the  lilll  against  luoi,  and  he  not  being  coni|)eliabIe 
to  make  a  discovery,  it  was  uselcs  to  keep  him  longer 
in  Coni't. 

Cooke  V.  Little  &  another,  sureties  on  ati  aiipcal    bond, 
for  Wiiiiney. 

Suit  in  the  County  Court,  and  judgmput  for  Plnintiff ;  appeal  by  De- 
fendant ti>  liie  Sup.-nor  Court,  with  A,  :.i>il  B,  secuiities  to  the  ap- 
peal boiv'l  ;  iiefore  judgment  in  the  Superior  Court,  the  hail  below 
surreudiTLfl  IIk  Defendant,  and  he  w:is  coimiiited  ;  afn-r  judgment 
in  the  Superior  (;ouri,  the  Defendant  iieing  gone,  set.  /«.  issued  to 
the  sureli-s  in  ihe  appe  I  bond,  uul  it  was  iuM,  thai  the  suirender 
by  the  bail  did  not  discharge  ihem.  "" 

The  Plaintiff  had  sncil  JVIdtneij  in  the  •County  Court, 
where  he  had  given  hail.  Upun  the  tiial  o(  the  cause 
there,  the  Plaintiff  obtained  a  ve.rdiet,  and  fFhitnetj  up. 
penltMJ,  and  ga\e  an  appeal  bond  as  tne  law  direrts, 
wiili  the  present  Defindiinis  liis  securities.  Th"  cause 
Was  removed  to  the  Su(K'rioi  Couri,  aiid  eniend  upon 
the  docket  of  that  court;  and  in^nding  the  action  herCj 
and  befoie  Judgment,  the  bail  below  surren.lei  id  fVhit- 
ney  in  this  ctmrt,  and  he  was  cominitled  to  jail.  After- 
Wards,  the  Plaintiff  olitaiind'a  xerdici  and  Judi^ment 
here  also,  and  fVkitrxy  being  gone,  the  Plaintiff  took  out 
a  sd.fu.  against  the  UeleiKlaots,  to  suhjtct  ihein  to  the 
payment  of  the  moniy.  The  Uefendanis  (jle;.ded  iht  sur- 
rentl  r  of  Wliitney  by  the  bail,  and  his  coinmitment  to 
jail  then  upon.  The  Plaintiff  ileuiurred  ;  and  now  the 
demurrer  was  ars^u-d  by  Moore,  for  the  Defendant,  and 
Davie,  for  the  Plaintiffs.  The  reason  why  this  cause 
had  been  brought  before  the  court  by  sci.  fa.  and  plead- 
ing thereto.  Was,  bii  anse  a  motion  had  been  made  at  a 
former  term  in  behalf  of  the  PUmliff,  for  leave  to  enter 
up judgmen I, i»is<«/i/er,  pursuant  io  the  act  of  1785.  c.  2. 
s.  2,  which  directs  that  "  bonds  taken  for  iiro-eciiMonof 
apjieals  with  effd  i,  shall  hereaftei  make  pari  of  the  re- 
cords sent  >'[)  'n  the  Superior  Court;  on  w  idijudgmcnt 
may  be  insluiiUr  entered  up  against  the  app.'llrtiit  and 
his  setMiiiiies;"  which  motion  was  then  refused,  andihe  (1^*) 
Plaintiff  directed  to  take  out  a  sd.  fa.  The  cause  was 
35 


194  Haywood's  repohts, 

Apr. ir95. now  vpi'y  wcU  aijjnpd   on   Jiolli  sides  ;  the  ar.fiftitaent  is 
*"'''*''^^  lu-n-  on)if'o(],  lesi  sorrip  material  part  sliould  br   I'o'j^ot- 
trn,  it  Ix'iiij:  <<••>  ioii£fthy  >,u  l»'4h  sides. 

Et  jier  curium. — The  act  of  1777,  c.  2.  s.  76,  directs 
bail  to  be  ,i;i\en  at  the  coiniiienci'intint  oF  a  suit  in  the 
Count)  Court,  and  hIsii  lii.tt  sncli  bail  may  surrender 
tiie  ])i  inripal  in  disciiargc  nl"  Iheinsfhcs  at  any  time  be- 
fore fiiiKl  jnflsment  obtained  :i,fi;ainst  tliein.  s.  20.  It  al- 
lows eiihef  p  ii-t>  an  appeal  to  tbis  contt.  s.  82.  but  I'C- 
rjuires  the  ap|i<-ilant  to  Rive  bond,  willi  sufficient  sure- 
ties, tor  tlx'  |)riise(iiiion  of  suih  appeal  wilb  <fl'ect,  and 
for  p'  rl'oi  niiiisj  ih<' jndijiueni,  sentence  and  decree  wliicli 
this  court  sliall  make  or  pass  thereon,  in  case  such  ap- 
pellant sliall  have  the  cause  decided  against  him ;  but 
the  aft  makes  nopr-ivision  for  any  surrender  to  be 
jiii»de  by  Ihesf  latti  i-  seem  ilies,  \>liicli  is  a  proof  that  the 
J><>(<;islHtnre  did  not  intend  that  they  should  be  discharge- 
able by  means  of  a  surrender.  Had  this  been  their 
ineaninj;,  tliey  certainly  would  have  declared  it,  as  Ihcy 
had  (lie  subject  of  vurrender  under  their  consideration; 
and  marie  provision  for  it  in  certain  cases  in  tliis  very 
act.  The  act  probabl}  goes  u|)oii  this  reason,  that  the 
I'iainlilf  having  h}  a  suit  at  law,  and  verdict  in  his  fa- 
vor, ostabiisiied  the  probable  justice  of  his  demand,  the 
Defendant  ouulit  tiien  to  be  held  t<i  more  strict  terms 
than  at  the  institution  of  the  suit,  before  there  was  any 
presumptive  eviflence  on  rcctird  astainst  him.  The  Le- 
gislature pr-obablv  tliouijlB'it  reasonable,  after  such  evi- 
dence, thai  the  Defendant  should  nut  have  it  in  his 
power  to  defeat  the  PlaintiflT  by  conveying  his  property 
to  other  creditors,  or  by  wasting  it  duriin;  the  pentlency 
of  the  appeal  ;  wliicli  event,  combined  with  the  circum- 
stance of  an  internie'liate  surrender  by  the  hail,  vvonlii 
leave  the  Plaintiff' entirely  remediless,  vxeicit  not  ton  tin 
security  lie  has  by  means  of  tlie  appeal  bond.  At  the 
sam  ■  time  tliat  tliey  allowed  the  privilege  of  appealing 
to  tiiC  Di  fendant,  they  wei-e  solicit'ius  to  provide  against 
cveiy  possible  inconvenietice  that  inighl  result  from  it 
to  the  other  party,  and  this  tin  y  have  intended  to  eflVcl, 
by  requiring  an  appeal  bond  will  condition  for  prose- 
cuting with  eflecl,  or  paying  tlie  coiideinnatioM  in  case  of 
a  Jmlgnient  against  the  appelhuit.  This  si  cures  thii 
I'laiii'iff  at  !ill  events,  and  against  all  pracli'cs  to  his 
prtjiidice.  The  sureiies  for  the  appeal  tlieiefore  cannot 
surrender,  nop  can  they  bo  discharged  by  the  «urreiidep 
«f  the  bail. 


Haywood's  ueports.  19p 

Much  iir.c;unipritha»lil)peii  iiskI  i-c^iicrtingtlic  meaning  Apr.  179^. 
of  the  act  of  1785.  c.  2.  aiul  ii  h.itli  been  coiiti'inlid,  thai  ^■^'"^^'^-' 
the  appeals  thcif  spoken  "f,  arc  frmii  jii(lj;ni<'iits  and  vei-  (I'O) 
diets  i-en<!('i  I'd  in  a(  tions  sul>jrct«'il  b)  tli.>t  aci  to  tiic 
Comitj  ('oiiit  jiii  is<li(ti((iis,  and  not  a|)|)pals  fnun  all  ac- 
tions in  general.  The  title  nf  ilic  act,  and  its  pi  eainlih", 
it  is  true,  only  looks  to  tlie  enlarjj;emeiit  of  ihe  Cmmty 
Court's  jurisdiction  ;  but  ihe  pi<)\  isi.s  in  the  first  clause, 
and  liie  second  r-lause,  relitt  lo  ap-ieuls  in  general,  and 
arc  to  he  taken  to  he  in  pari  materin  witli  siie  act  of  \T'7, 
c.  2.  Tliey  are  both  pai  ts  of  (oie  wiiole.  and  these  puts 
of  tlieaci  of  1785,  have  a  rercieiice  to  appeal  lioiid'^  takeii 
pursuant  to  iho  act  of  1777.  This  is  idainly  evinced  by 
the  |)reanible  or  jntiodijctor.v  pai  t  of  the  sicond  clsiuse. 
•' Anfl  whereas  from  the  inanncf  in  \vhicli  i'pjieals  from 
the  County  Courts  of  Pleas  and  Quarter  sessions  have 
beeti  heretofore  obtained  in  iminei  nits  instuiccs,  freq^uent 
injustice  has  hippcncd  to  many  just  suitors,  from  tlie  de-, 
lay  incident  to  s.iid  appeals."  TiiiH  is  the  most  iinerjui- 
vcical  reference  to  abuses  coininilted  in  the  prosecution 
of  appeals  previous  to  that  time,  that  jan'^uage  can 
signify,  that  is  to  say,  to  the  prusicution  of  app^-aLi 
taken  (inrsuaiit  to  the  act  of  1777  ;  .ind  for  llie  re- 
medying these  abuses,  it  directs  appeal  bonds  fii-  iliu 
future  to  he  sent  up  as  a  part  of  the  record  ;  but  it  does 
not  direct  any  new  species  or  form  of  bonds.  It  is  addi- 
tional to  the  act  of  1777,  vvliicli  did  not  provide  for  the 
sending  up  such  bonds,  and  the  coiisrf|iiencc  ot  iheii- 
omission  frequently  was,  that  the  bonils  wore  lost  rit- 
mislaid,  and  the  remedy  upon  them  (rusiraled,  to  the 
prejudice  and  loss  of  the  appelhes.  'I'heuctof  1777  did 
not  ascertain  tiie  mode  of  proceeding  up>M  api)e.il  hotida 
by  the  appellee,  when  it  siionld  be  necessary  to  proceed 
upon  them,  whether  by  a  new  action  of  iettt,  by  sci.fa. 
by  a  motion  in  court  for  judgment,  or  ho»v  otherwise; 
and  of  course  doubts  were  entertained  u(iom  that  point. 
The  act  of  1777  imiiosed  no  penally  by  way  of  restriction 
upon  vexations  and  unjust  appeals,  priyed  simietiinesfoi" 
the  mere  purpose  of  delay,  at  others  for  the  purjiose  of 
gratifying  a  litigious  dis|iosition.  All  these  omissions 
are  supplied  by  the  act  of  1785,  appeal  bonds  by  that  act 
arc  to  be  a  pai't  of  the  record  transmitted  to  the  Supe- 
rior Coiii't;  the  appellee  may  enter  jndgaii  tit  upon  them 
instanler,  by  motion  to  the  court  ;  and  if  tlie  judgment 
below  be  aftirmed,  the  appellant  shall  pay  interest  at  the 


496  Haywood's  reports. 

Apr  l^SS.  pj,(g  of  twelve  and  a  half  per  cent,  for  his  drlay.  And  if 
^^""'^^^  tlip  urt  of  1785  i-i'lates  lo  a|i|)r-,ilH  iienerally.  flip  -.irgu- 
1.1^1)  meiits  biiilr  upn'"  tWr  ronirtry  piwifion  mii<t  al)  falj  to 
tlic  jrioiind.  It  WHS  arjjiied  fur  ihc  «|pfeiicliiiits,  tliat  ihe 
coniniiimnit  «f  tlii'ir  prit'tipHl  aftff  his  siirrrndi  r  lij  llic 
bail,  was  ;i  coiunniimeiit  in  PX'Ttilion.  and  iliat  ih«TP  ran 
be  ii<>  ji.fa.  asrainst  tlie  snrciirs  after  this.  None  nf 
these  stutements  are  just — lie  w  as  not,  nor  roiild  Itc  cnm- 
mittcd  in  exerutioti,  bocanse  at  the  time  of  the  surreiider 
thei-e  was  no  j(td_e;nieiit  atjainst  hini  :  but  suppose  liiinto 
have  been  romniittcd  in  exerutioti,  it  will  not  follow  that 
that  i.pcrates  as  a  disrharj^e  of  his  suiefies,  nriy  more 
thai,  in  the  case  where  there  ai'e  llii'ee  ohlijrors  to  a  bond» 
and  one  is  taken  and  iu'piisoned  in  px<'''ui<ni  for  the 
debt,  that  will  not  disrharf^e  fht-  fitheis.  5  Rep.  86.  1 
Tloll,  M.  ^Oi.  pi,  9.i.  Nolliing  shoit  of  payment,  or  a 
^  release,  will    discharge  the  co-obligors  in   such  case — 

had  he  been  in  exerution,  and  l)Ci'n  discliarsed  by  the 
Plaintiff,  ihat  niigiit  have  disrhaiged  his  sureties;  but  a 
man  can  lu-ver  be  in  execution  till  after  Judgment,  and  a 
prayer  for  that  puriibse  entered  on  rercn-d,  and  the  prayer 
allowed  by  a  C0TO7iii<(i<itr  entered  on  lecord,  when  a  prin- 
cipal is  suirendoied  by  his  bail — for  if  he  could  be  in 
exerutinn  merel)  hy  a  surrender  without  jirnyer  of  the 
Plaiiitilf.  he  might  then  take  athantagc  "f  (he  insolvent 
debtm's  act,  and  also  might  preclude  the  Plainiiff  of  the 
benefit  of  -xji.fn.  when  jierhaps  at  the  lime  of  the  sur- 
rendi'i-,  the  FlaintifT  might  know  that  in  a  little  time  to 
come,  he  wonlil  ha\e  property  enough,  as  by  the  death 
of  relations,  mar'  iage  or  other  miMiis — and  sliould  hf  be 
once  in  exi-cufion  by  his  hmly,  the  I'laintifT  could  never 
afterwards  during  his  life,  ha\e  a  Ji.fa.  and  tlierefnie  the 
law  will  not  say  he  >-hail  he  in  execution — f(n  the  Plain- 
tiff, e»en  npcm  a  surrender  after  judgment,  unless  the 
Plaintiff  rhuses  Ihat  he  shill  be  so;  which  i  lioice  must 
be  manifested  by  a  prayer  on  record.  And  if  he  be  im- 
prisoned n|)on  a  surrender,  for  instance  to  the  Sheriff 
out  "f  court,  the  court  will  releuse  him  from  his  impri- 
sonment after  Judgment,  unless  the  Plaintiff,  in  a  rea- 
sonablr  time,  apply  to  charge  him  in  execution.  But 
U|ion  iiiis  l^st  p^tint,  though  the  court  seemed  to  be  very 
clear,  Mr.  Moore  still  thought  the  law  was  otherwise, 
and  ,'ie^sed  {I'v  furliier  time  t'  argue  it ;  which  was  al- 
lowed hill)  by  the  (ouri.  and  the  argument  did  not  again 
come  on  during  this  term. 


uavwood's  heports.  197 

Apr  179S 
Anonymous.  >.-*~v>^ 

An  tppellep  may  movp  for  an  xffirmanceof  the  jndprnent  with  doiihle 
cos.s,  tiUii  I- at  v|),  firsi  o  am  oilier  Icvm  .t't-i-  Hie  ;.|i[)i.'a1.  Ptr 
Macay,  liidgt"  Uui  Hatwdod,  Judge.  <U  rfied  tlif  pioi.rii  ty  of  it, 
and  a  rule  upon  the  appellant  to  show  cause  ai  the  next  term,  was 
ordered.  ' 

Mr.  Mjrwond  moved  to  liave  leave  to  enter  up  the  af- 
fiiinaiice  of  a  judgment  of  the  County  Court,  n|i<4ii  an  ap- 
peal takpu  from  ihf  nee  to  (his  court.  The  appetii  uas  C^^®) 
returnable  to  last  term,  but  nu  motion  was  ihiti  made 
for  the  affiriuaure.  The  a|>p<llanl  had  fiiled  tohrinjj  up 
the  appeal  fifticn  daysbeCoie  the  term.  Judge  Macay 
— To  the  best  of  my  rememhi-anre,  it  has  aKvavs  been 
the  practice  to  enter  up  judguietits,  as  tiow  moved  for, 
at  any  time.  Judge  Haywood — Whatever  may  have 
been  the  practice  I  cannot  say,  not  ha\  ing  atreiKli  (I  fn  it 
in  this  parti<'ular — aouietiuies  a  practice  may  prevail  for 
a  lenglh  of  time,  upon  the  strength  of  a  precedent  passing 
sub  sileniio,  which,  when  it  comes  to  he  examined  may 
be  found  very  ernifieoiis.  Where  an  ajipeal  is  taken, 
both  the  appellant  atid  appellee.  ha»e  theJirst  day  of  the 
next  term  nl  the  Superior  Cimrt  given  lo  Ihem  for  theip 
appearance  in  cmirt,  atid  by  tliat  means  the^  are  both  in 
court  that  day — the  appellei-  to  move  for  the  affirmance 
of  judgment,  and  llie  appellant  to  (h  fend  himself  agaitist 
the  motion,  by  shewing  any  p;-nnl  cause  he  may  have 
ag^tinst  it,  as  payiin-nt,  release  or  the  like,  since  tiie  ap- 
peal taken.  The  act  of  1777.  ch.  2.  sec.  84,  directs,  that 
the  appeal  shall  be  brought  up  firte*  u  days  bcfiwe  the 
sitting  of  tiie  term,  for  tliis  reason  principally,  that  tlie 
appellee  may  ha*e  sutticieni  time,  after  ktiowing  the  ap- 
peal is  intended  to  be  pi'osecuted,  by  its  being  filed  in 
the  office  for  that  purpose,  to  prep.>re  him-^elf  foi'  the 
trial,  or  if  not  filed,  then  to  procure  fniin  the  Clerk  of 
the  Countj  Court  a  transcript  of  the  record,  and  there- 
upon move  for  the  affirmaiK  <•  ;  but  if  the  first  term  of 
the  Superioi-  Court  passes  without  any  such  motion  fop 
the  affitmance,  and  without  piit'ing  the  cause  on  the  re- 
cords of  this  court,  and  continoitig  it  to  the  next  term, 
the  parties  arc  both  tnit  of  court;  and  one  of  (iiwn  can- 
not move  againt  the  other,  withoui  britiL'iiig  him  into 
court  again  by  s(Mne  new  process.  7  Rep.  .'lO  a.  It 
tvould  bepiuiluctive  of  great  mischief,  could  the  appellee 


(173) 


IDS  HAYWOOD'S    REPaUVS. 

\pr  1735.  at  any  »li3tance  of  tinip,  in  the  absence  of  tlu*  iipprllant, 
-'"'^'^^  lip  at  librrty  to  take  a  jnd.qniont  H£r-.iinst  liiin  npon  a  mere 
motion  to  the  cdnrt.  By  such  means  a  jti(l:;nient  ini2;ht 
be  entered  against  a  man,  (ip)n  an  old  dormant  County 
Court  \erdii-t,  after  he  had  moved  ciiit  of  the  ronntry, 
and  )»eriiaps  HatisTnii  the  (h'inand;  or  wlieii  the  I'iaintifl" 
had  disrovercd  his  evidence  «eielo'<t,  and  all  iheprojiei-ty  ' 
he  had  here  be  swept  away,  before  he  rmiid  havclhe  least 
intimation  of  it.  i  am  very  eleai',  if  I  lie  practice  spoken 
of  has  |>i'evaiied,  lliat  it  in  reptignant  to  an  nniiersal 
principle  of  Ihw  and  Justice,  that  no  man  shall  be  con- 
demned ex  parte  or  nnheard,  as  well  as  to  the  true  mean- 
ing of  tliC  act — theiefr>re  I  cannot  yield  my  consent  to. 
the  motion;  bnt  I  am  willin,:^  \ou  Khmild  take  a  middle 
way — you  may  ,e;ive  noti'-er  to  tlie  appellaol  of  the  in- 
tended morion  for  aflirmance  to  he  made  at  the  m-xt 
term  ;  and  at  the  next  term  piovo  ihf  seivici-  of  'his  no- 
tice by  affidavit  fih-d  in  court,  and  thi-ii  renew  jtour  mo- 
tion, and  the  court  will  then  consider  it — )ou  may  have 
a  rule  entered  lor  tliis  |)urpose — so  the  rule  was  entered 
accordingly. 
Note. —  Vide  JJrickell  v.  Bass,  ante  157. 

Cain  V.  Puilam. 

Action  on  the  case  for  slanderous  word.i.  This  cause 
was  referred  by  mh-  of  <()uitto arbitrators,  who  awarded 
in  favor  of  thr  Plaintitf,  ami  returned  their  award  into 
coun.  'I'hi  se  exnpiions  were  taki'u  ihrrcto  in  wiitinpf, 
filed  by  Oen.  Davie,  tin  principal  of  which  were,  that  the 
arbitiiitors  jiriiCieded  without  decl<raio)ii, notwithstand- 
ing the  Deleudani  insi^if-d  it  should  be  inoduced.  These 
being  filed,  a  day  was  given  bv  nth  of  court  foi'  hearing 
the  exctp'ioiis.  Thej  were  answereil  in  writing  also, 
filed  l»>  Jlr.  Moore  for  the  Fhiniiff,  and  on  the  api>ointed 
day  wi-re  briiiight  b(  tore  the  court.  The  exceptions  of 
the  I)  Icml.iiit  weir  supporled  hv  aftidavii — they  were 
conlradi' ted  by  ilie  atli<lavits  of  •me  of  the  arbitrators, 
and  of  one  Smith,  who  had  briii  present.  These  persons 
swore  that  the  Delendaiit  made  that  obji'ction,  upon 
which  the  abitrators  siopt  in  order  that  it  might  be  pro- 
duced; then  tlie  Uefendani  consented  they  might  pro- 
ceed witlinui  tlie  declaration,  stating  the  words  spoken 
m  laid  in  the  declaration,  which  the  other  ^Mi'ty  agreed 


lIAYWOOn's   UEPORTS.  199 

were  Hie  words  stated  tlit-rrin.  Upon  this  the  court  Apr.  1795. 
(jvci-rnlfd  the  exrcptimis.  Tliis  rase  is  leporrtd  losliew  ^-^^"^^""^ 
wJiat  is  tJie  piac  ti( «'  in  sticli  cases  in  (lur  CdUiis. 

Hunt  V.  Jiicks  &  London,  surviving;  partners  ol'  the 
company  of  Jik  ks  &  Co. 

General  reputation  i^i  not  sufficipni  'o  cli;irsfO  a  paiiicular  person  as 
pai'.nei' ;  there  must  be  sume  confession  of  his,  or  somf-  ov  rt  act 
to  prove  It.  When  a  persin  indebtc  I  to  auottur,  knows  what  sum 
lie  is  to  pay,  and  when  he  is  to  pay  ii,  he  must  pay  interest. 

Dunicbhin  Imd  piircfiascd  the  tobacco  of  the  I'laintjff, 
and  had  n^t  |);iid  Foi-  it.  D twb ehhin  w.ifi  dead,  atid  his 
estaic  snp|ios((i  difficult  to  be  come  al— vvhiien|)(>ii  liie 
suit  was  instiiiMC'l  aicainst  ihcsc  Di'Ci'iidants.  The  proof 
of  the  partii('i,.>liip  de|nMidcd  upon  the  dcpo-ition  of  Mr. 
Uoopvr,  wh'idi'iioscd,  that  :ibiintihe  'inn-  of  the  pm-chase, 
there  was  such  a  conipMny  as  that  i>(  Jncks  <^'  Co.  t!i  it  lie 
was  a  partner  hini.self,  and  also  Ihinbebbiu  ^*  Lrnidon, 
and  another  whose  name  iie  tnenlitmed  ;  and  that  to  the 
best  of  liis  remembrance,  some  <if  ihe  |iariiiei's«f  this 
ciiin|ianj'  rnirch.ised  a  fjuantit}  of  tobacco  of  ihe  Plaintiflf 
for  the  comp.my.  i\.  Ictier  was  iieodnc.ed  wiitten  by 
London  or  JMdtbehhiii  m  (he  Piainiif!',  siatliij;  (he  account, 
wiiirli  was  in  (he  nam-'  i)f  Jacks  (Sf  Co.  It  inloruied  the 
I'faintift'  that  Jiicks  had  tlie  money  to  pay  the  balance  of 
tlie  account ;  and  llii'  Counsel  fi)r  the  I'laintiff  insisted  . 
this  lender  ha<l  been  made  upon  this  evidence.  The  court 
left  it  to  the  jury  to  say.  «h<tlier  such  a  company  had 
existed,  and  wliether  the  Defendants  had  been  jmrlners. 
Thi^  coiirl  informed  tiiem,  Miat  ihe  other  (^'positions  in 
the  cause,  staiint^  a  ejeucral  reputation  n?  the  partner- 
fihilt,  were  not  sulHcicnt  to  charge  Jacks  as  a  partner — 
there  must  be  some  confession  of  his,  or  some  overt  act 
;)io\ing  the  same  ;  but  if  they  could  rely  upon  the  accu- 
racy of  .'/r.  ILioper's  reineinbrance,  as  he  had  spoken  of 
it  ;  or  if  th('_>  believed  Jacks  carried  the  letter  and  the 
•nont^y  mentioned  in  it.  and  knew  how  the  account  in- 
i.'loaed  Was  slated,  that  would  amount  to  an  admission  of 
liis  h'ins  a  partner ;' and  in  (hat  case,  they  should  find 
for  tin-  Plai:.ti(r,  Olherwfse  for  tlie  Defendant — Tliejr 
found  f'»i"  llie  riaiiitiff,  and  also,  pursuant  lo  tiie  charge 
of  line  of  the  court,  f^iven  a  few  (la>N  befne,  who  slated 
the  ride  to  be,  tlial  wherever  the  debtor  kiK)Ws  (irecis-ly 
what  he  is  to  pav.  and  "lien  he   i«  to  pay  it.    ih--*  iSr 


(174) 


200  haywood's  reports. 

Apr  1795.  ju,.y  jnigiit  give  interest  by  way  "f  d'images.  if  tlicy 
^^~^^>^  thoiigltt  proper.  Tliey  did  in  this  case  allow  damages 
to  ilip  amiiuiit  of  tlie  iotnest  on  the  principal  smn,  by 
wav  of  addition  lo  the  principal  damages,  and  it  was 
not  Complained  of  on  the  other  side,  and  the  Plaintiff 
had  judgment. 
Note. — Vide  Slate  v.  John  G  U  Thtmas  Blount,  ante  4. 

Smith  V.  St.  Lawrence. 

The  negotiabiliiy  of  a  bill  or  note  may  be  restrained  by  indorsement, 
or  by  special  words,  in  liic  body  ot  the  note.  Iiidnrstr  may  sus- 
tain  an  miction  in  Ins  own  n  ime,  cither  striking  oiil  i  he  indorsement, 
or  with-.iui  it  ;  posMSsiOH  of  ihc  note  baUig  prima  facie  evidence  of 
payment  lo  iiiilursee. 

This  was  an  action  ins'itiited  npnn  a  note  nnder  seal, 
dated  "ioi-e  the  year  1786,  promi-iiog  to  pay  tlie  money 
to  Flaiiiliff  anil  to  liim  only.  It  wuh  itnlorsed  by  <hc 
Plaiiilitr  to  an  assigofe,  but  (he  anion  \v.»s  siill  com- 
ineiiced  in  the  name  of  the  original  pa_> ee.  Mr-  Moore, 
for  the  Defendant,  object' d  that  the  I'laintiff  ought  not 
to  reiOM-r,  b<-canse  it  ajipeared  by  this  iirdorsement  that 
tlo- |)i  p.  rt>  or  iiit<'rt'st  in  this  note,  wan  not  in  the 
Pl:<ii  iffbu'  in  another  person. the  indorsie.  Gen.  Davie, 
.j.g\  e  cuntra — ijn-  iiid.<r>.<-meiit  of  «  note  by  speri.il  winds, 
ina>  Msirain  it-  fjiure  neicotiability.  2  Dmig  638. — 
Ami  liy  p;irjt\  of  rison,  Ihe  negoMability  of  atioiemay 
be  rcsTained  by  spi-oial  wohIm  in  tin-  liod>  of  ilte  note 
itmrif — if  so,  ilieii  hiK'  I*,  the  word  only,  meant  no  doubt 
to  restrain  iis  ti.f'-ler,  and  'lieo  ii  is  not  negotiable  un- 
der 'he  act  of  1786.  c.  .  which  only  says,  that  "  all 
bills,  bonds  or  noti-s  fur  money,  as  w»d|  iliose  with  seal 
as  thosi'  wi  h''Ui  si  a!  :  those  which  arc.  not  ••xpressed  to 
be  payable  to  oider.  I'l-  for  \iilue  received,  as  tho-se  which 
are  expressed  to  be  payable  to  order,  or  for  value  re- 
cei>e(l.  shall,  aft4M  Ihf  p«ssing  id'  this  act,  be  hi-ld  and 
dienii'd  (o  lie  neuiotiable ;  and  all  intoi-est  and  pi'operty 
thfirin  shall  be  transferable  by  indorsement,  in  tlie  same 
manner,  and  nnder  the  same  rules,  regulations  and  re- 
SM'ii  tions,  as  notes,  cillid  proniissmy  or  negotiable 
no'e-;,  have  lirretofae  bipi  .'"  Iiiis  clause  compri-hends 
tlie  case  of  noli  s.  in  «liicli  tliCre  is  lli'tliing  expnssed 
towrtids  iciuii-ring  them  negotiable;  but  it  does  not  ex- 
tend to  cases  like  the  present^  where  negotiability  is  ex 


Haywood's  reports.  20l 

pressly  guarded  asainst ;  aii<l  of  c.<i(irsc  the  indnrsenacnt  Apr.  1795. 
in  the  present  casi-  canntit  opcriite  as  <»  lesal  transfer  of  v.*^^''>*i' 
the  note.  One  of  the  Judges  Mieniioncd  tin- rase  of  Dook 
▼.  Caswell,  f  .rmi  riy  d'-i  idrd  iei  this  court,  wliert-  the 
note  WHS  iii(h)r-ed  to  Benton,  but  tin-  suit  rommeiued  in 
the  name  of  Dook,  and  'he  court  allowed  the  indorse- 
ment to  he  struik  out,  u|iou  an  ohjertioti  similui- In  the 
present  beins;  made.  Ui.on  tin-  mentioning  this  ca'^e  the 
record  wa«  voarclied  and  found  lo  hi'  «n. 

Per  Curiam — The  negotiahilit}  of  a  bill  or  tiote  may 
be  restrained  h>  indorsement,  oi  by  -pecial  words  in  the 
body  of  the  note  itself;  aod  if  it  could  nor,  yet  the  origi- 
nal pnyee,  having  the  bill  or  ii"te  in  his  possession,-  is 
evidence  of  the  note  having  been  relui-ned  to  hi:n  l)y  the 
indorsee  after  the  indorsenxnt  ;  and  if  a  payee  indorses 
by  a  general  or  special  indoisement,  and  ilie  ahsignee 
cannot  obtain  payment  of  iln-  draper,  or  maker  of  tiie 
bill  or  note,  he  may  call  Uj)on  the  imloisii,  ;ind  lie  is 
compellable  to  pay  the  money  and  take  back  the  hill  or 
note;  and  if  in  sucii  case  the  indorser  or  ])aje.'  could 
not  sue  thi>  maker  in  his  own  name  because  of  the  in- 
dorsement, lie  could  not  reccnee  at  all.  He  m.iy  strike 
out  the  indorsement,  or  recover  without  stt  iking  ii  i>ui — 
his  possession  of  the  bill  or  note  b>ing  evid.  nee  <if  such 
a  repayment  until  the  cnnirary  be  slicwn.  fihow.  163. 
Lutrv.'s85,  888,  896  — So  theie  was  a  verdict  and  judg- 
ment f<v  the  Plaintiff. 

NoTB. — Vide  L,  Hay.  743,  where  tlit  indorsLP,  who  was  in  posses- 
sion ot  liir  l)ir,  iiavHij;  |j:ild  if  to  ttie  last  inlorsee,  v.  as  imnauiteil  for 
not  produonq;  ;>  receipt  tor  llK-  money  paid  iiinn  the  lusi  ind  .rsee— 
but  the  r.'iief-Justice  Hnit  thought  proof  of  ;iie  payment  wciull  liave 
bePii  sufficient  witliout  ihe  receipt.  T!ie  f^'t  In  the  cited  casi-  was, 
that  DaoA:  i he  payee,  liul  endorsid  ut  Benion,  wh'i  was  an  ittorney, 
that  he  might  instituie  the  suit  in  liis  own  name,  but  lo  the  use  nf 
Dook — Benton  gave  nothing  tor  the  bill,  and  lieil  befoi-e  iiie  com- 
mencemMit  of  the  intended  action,  whereupun  the  bill  was  returned  (XJ^") 
by  the  Kxccut.rs  to  Dook. 

Note. —  Viile  Drew  v.  ^acoeks's  Adm'r.  2  Murplt.  138.  Dook  v.  Cos- 
tueUa.\\iX  Ih'i  nne  thereto,  aide  18. 

State  V.  Roberts. 
Indictments  containing  three  counts,  the  fir^t  of  which  the  Court  had 
no  cognizance  of.  To  submit  on  the  first  count  ;ilie  others  not  lo 
be  consi  lered)  would  ou<t  the  Court  of  jnrisdiclion.  subiinssion 
cannot  be  made  upon  one  count  without  all,  unless  not- pros,  is  en- 
tered as  to  the  nth.r  c  lunts.  Upon  assaults  with  intent  lo  Rill,  the 
Court  may  punish  by  tine  only. 

He  was  indicted  for  an  assault  and  battery,  stated  in 
three  roiiots  :  in  the  fireit;  for  a  cuminon  assault  and  bat- 
96 


20S 


maywood's  HEPOnXS^ 


Apr.  1795  tery ;  in  tlio  serond,  for  an  assault  with  intent  to  kill 
^"^'^'"^^  iiiid  murder;  in  tlic  third,  for  -tn  ;<ss;uilt  and  woiindiii^q 
with  intent  to  kill  atui  ninidi'r.  Gen.  Davie  fur  the  De- 
fendaui,  upon  an  asrcrnient  het  ^»'<ii  him  and  th«^  Solici- 
fur-Geni'r,il,  oHerfd  to  Kuhniit  up.ni  the  first  count,  and 
the  other  coiints  should  not  be  foiwidi'rrd  at  all.  Per 
curium,  ifhr  suhuiits  upon  th^l  only  the  nnirt  cannot 
take  any  n  tuo  of  'he  otfi'nri*,  hi-iua;  ousted  of  orictiual 
jurisiiiiti  )ri  hv  the  acl  of  1790.  ch  3.  sec  8.  which  di- 
recis.  "that  iill  imlictineiiis  for  iissault.s,hat!eries  and  pe- 
tit Imceuips,  shall  in  future  oria;iuatp in  die  county  I'ourts 
of  pleas  and  quarier  sessions  only  "  These  woi-ds  arc 
equivalent  to  exjin-ss  nej^ative  words,  ^hich  it  is  said 
are  necessar;*  t  >  uist  this  court  of  Jurisdiction  ,  and  the 
D' fcndani  cannot  liyhis  admission  givf.loihe  coui't  cog- 
nizaiue  of  an  ufTcncr  wdicli  by  law  they  have  no  cogni- 
zance of.  ;;ny  nioie  Mian  a  piisoiicr  indicted  for  a  capital 
fel<uiy,  <  oiild  hy  l>is  adutissiou  j^ive  authority  to  a  county 
court  to  pass  sei'ieiici-  upon  him.  N-'ither  can  there  \^e 
a  submission  lur  part  oi  the  indictment  only — he  must 
submit  as  to  ^11  'he  coun's  in  the  indictment  if  he  submits 
at  all.  unless  the  Soli'  itoi -General  will  enter  anoli  pro- 
sequi as  to  soni!-.  Et  per  curiam,  tiiis  court  arc  not  obli- 
"ged  to  iuifU'lhoii  upon  a  coiiviction  for  ati  assault  with 
intent  to  kill — tlie^  may  iiiQici  imprisonment,  the  pillory 
and  a  fine,  but  ihcy  may  inflict  some  or  one  of  them  on- 
ly. 4  HI.  CiWi.  217.  means  only  that  the  coiipi  liave  a 
discretionary  powei  nf  inflictins;  the  punishments  there 
inenlioned,  not  ihat  tiny  are  obliged  to  inflict  all  of  them. 
He  siihiiiitii  il,  and  the  «iiiies>-es  for  the  State  were  cx- 
amiiP'd,  and  the  court  fined  him  only. 

Note — Tliat  the  coiiseni  or   ajmissions   ot  parties   cannot  give  a 
Court  jurisdiction.  Jiee.  Wag-^tner  v.  Grove,  Conf,  Jiep.  516. 


Haywood's  reports.  303 

Apr.  179^. 

FATETTEViLLE,   APRIL    PERM,  1795.         v-*-vr>w 

Seekriglit,  on  tlie  dfinise  ol  Wii_u;lit  aiii  Vt  ifc,  V. 
Patrick  Bogaii. 

It  is  the  fii'St  patent  ur  grant,  andii'it  tlie  first  entry,  in  helimd  office 
that  gives  tiie  best  'ill<-.  In  tlie  case  of  lapped  patents  wlure  'lOth 
are  in  pussessinn  cf  their  respective  Ir.icts,  bin  iieith'  r  ■■>■  tuHi'\  "-et- 
tledon  tlie  lipped  i  »rt,  Hie  oldest  gr'ntee  will  be  consid.ird  ug 
haviiifj  llie  leg  I  pusse  -ion  of  tliut  part.  Piaintifi' may  prove  the 
loss  ol  Ills  deed  by  hi«  own  o^tli;  but  not  !li:il  ihe  pi  it  offered  iu 
suppor'.  ot  his  title  was  puit  of  the  deed    lost. 

Ejectmi'iit  for  fifty-four  acres  of  laod.  The  Pl.tintiffd 
fl.iiiiiiMl  iiiidi>r  DOC  Thomas,  wlin  conveyed  to  Jlaroii  Ba- 
ker, wlio  died  Keisod,  leaving  the  feme  his  only  r  inld. — 
The  grant  to  Thomas  bore  dale  in  tlie  (iionlli  of  Dei  em- 
ber, III  the  year  1770.  The  mesne  conveyance  to  Baker, 
ills  dyiiig  seised,  and  the  iieirsjiip  of  the  Pjainiilf.  v.ere  (177; 
proven.  The  Defendant  claimed  title  iiinler  one  Jl-JYaft, 
who  conveyed  to  him.  M'JVaft's  patent  hoie  d  I'e  IS^lt 
April,  1771,  and  his  couveyaiice  to  Bognu  wa^  proven. 
Tlic  land  granted  to  Thomas,  and  I'y  him  to  Baker,  was 
a  large  tract  of  five  hundred  acres.  The  tract  granted 
to  M'JSTatt,  and  by  him  to  Bogan,  was  a  tract  of  twi: 
hundred  acres,  and  it  intersectivl  tin-  tract  of  five  htiii- 
dred  acres,  so  as  to  include  the  fifty-lour  acres  which 
were  tiie  subject  of  this  dispute.  Bogan  took  pos-essioit 
of  hi^  tract  of  two  hundred  acr<-^,  iis  one  wit!!e^s  proved, 
ill  1775,  as  anot'icr  said,  in  1773,  and  coiuioned  thaC 
posses.siou  down  lo  the  picsent  day.  Baker  was  proven 
to  be  in  possession  of  bis  tract  of  five  luinilrci!  aci-es  in 
1778,  soon  after  tlie  Briar-creek  defeat;  and  his  posses* 
sion  lias  also  been  continueil  to  ihe  persent  time,  except 
as  to  tiiese  fifty. four  acres,  which  wer-  ch^ared  bv  Lanier, 
the  first  husband  of  the  feme,  and  culliialed  for  two 
years;  he  tlien  dieil,  and  the  feme  intermarrying  with 
n^righl,  he  cultivated  it  one  yci.r;  in  the  fnll  of  which, 
year  5o^an  entered  and  took  possession — whereupon  ihifi 
action  was  instituted.  M'J^aWs  ent.  v  in  the  laiid-otlico 
was  made  in  the  year  176G,  that  of  Thomas  at  a  subse- 
quent period.  This  being  the  evidence.J/r.  .Uoorpfor  the 
PlainiifTs,  was  about  to  speak  to  thejniy;  hut  Judge  Ma- 
cay  called  to  Mr.  fVitliams  to  hegin.  lie  insisterl  that 
tiieir  entry  was  prior — rliai  M'JYatt  hail  tir-.t  purchased, 
ittid  was  injustice  entitled  to  it.     Seeoiidly,  tliat  Bo^aa 


304  Haywood's  reports. 

Apr  1795. hn J  possession  ever  sinre  Hip  yrar  1773,  and  Uiat  more 
''^"^^'^^   tliau    >e<  en  ypai'S  liaviiis;  fl-tpsed,  during  all   whirh  time 
Bogav.  WHS  ill  piisscssiciii,  tliai  the  Plaintiflf  had  thneby 
lost  lice  rie;ht  "f  possessiiin. 

Per  curiam,  the  question  here  is  who  has  tlie  best  title 
to  possess  this  fil"t> -f'i)iir  acres — as  to  whirh  the  riii<'  is, 
that  the  fii^.t  patent  <>f  tyrant  j^jves  th'*  best  title,  not  flic 
first  entry  in  the  land-offire,  unless  the  first  patentee  or 
grantee  loses  that  title  by  siifieiing  an  adverse  pns-essi- 
on  of  seven  years  witliout  entry,  claim  or  action  made 
by  him  wi'iiin  that  time.  Here  the  Defendant  hath  been 
in  possession  ever  siiice  the  year  177S,  hut  the  operation 
of  The  art  of  liniiiations  hath  been  suspended  by  two  sev- 
eral a(  Is  of  the  Leejislittiire,  from  the  year  1773.  to  the 
firxf  of  June,  1784,  thit  is-  to  say.  by  the  act  of  177r, 
c.  2.  sec.  54.  and  the  act  of  1783.  c.  4,  sec.  9  ;  and  this  ac- 
tion was  commenced  after  the  fiist  of  June,  1784.  and 
before  seven  years  had  elapsed  from  Opit  period  ;  so  that 
there  is  no  bar  forined  under  that  statute  by  the  pHssess- 
(^178)  '""  which  the  deleinlant  had.  Besides,  the  rule  nf  law 
is,  that  vilii'rr  two  persons  are  in  possession,  claiming  by 
different  titles,  the  I.iw  will  adjndjsje  the  legal  possession 
in  hitn  wlio  hath  the  right.  In  the  present  case  both 
Plaintiff  and  D  fetidant  were  in  possession  of  the  fifty- 
four  acres  in  dispute,  from  the  yeai-  1778,  when  Baker 
is  proved  to  have  been  in  the  occupation  of  his  five  hun- 
dred acre  trad  ^  and  therefore  from  tha'  peiiod  he  claim- 
in.g  uiidi  r  the  patent  fiisi  dated,  the  law  v^ill  adjudge 
the  possession  of  this  tract  of  fifty -four  acres  to  have 
been  in  him;  and  then  feom  the  year  1773,  when  Bogan 
first  took  possession  of  his  two  hundred  acre  trait,  to 
the  year  1778.  there  were  hut  five  intervening  years— 
Bogavi's  possession  of  the  fiftj-four  acres  was  then  de- 
feated hyUaker's  entry  into  his  five  hundreil  acre  tiact—for 
either  of  these  reasons,  possession  will  not  avail  'he  Dfi- 
fcndani  in  the  present  case,  and  then  'he  title  must  rest 
Ujion  tlie  priority  of  the  patents.  Wlierefore  the  Plain- 
tiffs ought  to  recover,  and  there  was  a  verdict  and  judg- 
ment for  the  Plaintiffs  accriidiii.gly. 

NoTK. — U|ion  this  irinl  Williams  for  the  Defendant,  offered  in  evi- 
dence A  plat  and  ceriificiitc  ul  ihi  survey  maiie  lor  M'J^'afl,  iilleging 
it  had  been. inn. xed  toilie  orijfinai  pat  tit,  which  was  distroytd.  and 
thi-  t'le  only  part  of  it  tha  lia  b-  en  pri-s.Tved.  He  proved  the  de-* 
strurtiiin  of  th>  patent  by  Moffan't  afiiilavit  and  oft'ind  lo  prove  tliie 
to  be  ilie  plat  forinrily  anni-xerl  lo  ii  by  the  same  means  :  but  per  cu- 
nam,  though  the  party  oft'ering  the  copy  of  a  deed,  has  been  permit- 


jiaywood's  repohts.  205 

led  to  prove  the  loss  an^l  <lfs>riiciron  r.Ctlie  deed  by  his  own  oath,  Apr,  1795. 
he  has  ni  ver  been  permitted  lo  prove  a  pir'  "this  title— t  is  wonlil  v^*-v"^^ 
be  to  »llow  him  !•)  prove  i  y  h  s  own  o  th,  that  tli>-  r  a|>'  r  "\  qu  s'lon 
was  :in  sp\iciKlaf;e  -iftlie  old  fii-.d;  wiiii  p^iliaosit  mi'iht  not  have 
been  so,  and  by  th;ti  me  ais  hi-  miiild  be  let  in  to  proA'e  by  his  uwn 
oath,  a  maleri:it  i  .t'  of  llie  title  perhaps  tha'  lie  set  up,  at  least  a  ve- 
ry materi.d  tact  in  this  c mlroversy.  Tdis  would  be  g'ling  murh  ftir- 
ther  than  the  bure  letting  him  into  the  e'ihibilron  of:,  copy  efthe 
deu  '  ;  whicli  when  proiluceil,  must  lie  proven  by  the  certificate  of 
an  officer  arting  on  oath,  or  the  oith  of  a  person  who  had  compared 
it,  to  con  ain  the  w  rdsof  the  original  paper  which  0"Ce  existeil — 
And  tht'  court  refused  th;-  eviderc  ■  ff  ivrl  ;  saving  further,  tiiat 
there  is  a  coiinterpar'  of  all  tl.e  old  p.itents  and  pl:its  lodged  in  the 
Secroti.ry'.s  office,  aud  that  mi.qht  liave  been  pridnced  by  force  of  a 
ituces  tecum,  and  would  have  ljei.-n  more  satisfactory  evidence  than 
the  paper  now  ofieied. 

Up>n  the  first  ai'd  last  points  sef  Dickey  v.  TVooilenpik  post  358, 
nnd  Blanton  v.  Miller,  ante  4  The  decision  upon  :b  ■  poii  t  o*  the 
lapped  patents  has  been  co  firmed  in  several  cases  which  li'dil  fuithev 
that  if  "one  of  the  i;ariics  is  'Ciually  set  l^d  f  rs  v  n  years  toif':tber 
upon  the  part  comprehenrled  mi  i.olli  d  rds,  the  po'^scssvn  i'h  s,  and 
the  other  will  be  barred  liie'i^liy".  Bryant  v  Allen  &  others,  2  huy. 
74.  Barrels  \.  Tunier.ibifl  lis.  Sla>lev.  Griffi,:,  ibid.'lTS.  Saw- 
yer V. ibid-  235-     Oibisan  v    Morrison,  1  Havlis,  if-7. 

Den  on  the  deinise  <>f  Park,  v.  Cochran  and  others, 

A  party  who  has  been  guilty  of  neglect,  may,  npon  seeking  a  conti. 
nuance,  be  compelled  to  pay  the  costs  .)f  Uit  term,  as  the  conditi- 
on of  the  continuance  ;  and  t'le^e  ros  s  ire  not  to  be  re'itnded  even 
though  he  should  succeed  in  tlie  cause  In  this  country,  no  actual 
entry  is  necessary  until  an  adverse  possession  commences.  A  pos- 
session to  bar  an  entry  must  be  a  continued   one. 

Ejectment  The  ronliiiuanre  of  this  cause  was  moved 
for  upon  an  affidavit,  staiin.u;  that  the  PlainfifT had  al  the 
last  term  procured  an  urder  of  •survey  of  the  j>rfmises  in 
dispute  ;  that  he  had  .e;iveii  iioficf  that  he  VYOuld  begin 
the  survey  fiur  day<  before  tlie  beo;iniiitiit  of  this  term  ,• 
that  it  had  been  bc;'-un  accordinfrly,  xnd  that  the  survey 
was  not  yet  comjileted,  tiiou.^h  it  would  be  completed  by  (179) 
the  emi  of  lliis  day,  the  day  on  which  the  motion  is  made. 
It  ai'pi'arcd  on  tlie  other  hand  that  this  order  had  been 
first  piocuretl  about  three  years  a_ajo,  and  liad  been  re- 
newed from  term  to  term  evei-sinit^  and  that  tlie  survey 
had  never  y  i-i  been  completrd.  Per  curiam,  the  Plaiirtiff 
has  been  enilly  ofs^reat  ne.iflect ;  he  iniicht  have  jtriicured 
a  survey  befttre  thi-i  time.  This  is  distinguishable  from 
the  case  of  Sf.  Lawrence  last  term,  at  Hillsboroiisjli,  to 
which  it  Lhs  been  ((unpared — St.  Lawrence  hit  i  in  de  no 
preparations  at  all  for  the  trial,  for  want  of  notice  as  he 


206  uaywood's  hepokt*. 

Apr.  1795.  f.3J,]^„l'.j  iievv  trial  liaAinf^bPon  granted  the  term  brline  ; 

"■^'^^'^^  whereas  lie  iiiislit  fiave  known  it.  liad  ho  iriade  the  ()ro- 
[ler  eiiqnii} ,  as  lie  oii^lit  '<>  h;<ve  d'l'ie — the  motinn  for  a 
nc'\  'rial  ht-ing  his  4)\vii  mntioii.     Here  thf  PlHiniiflT  he- 
fjaii  his  Mii'\ej-  in  time,  a^  he  sii|'j)ise<l,  to  i-omi  leic  it  by 
the  linir  of  Mie  setiiii.q;  of  ih"S  rout'  at  ihc  prc-i-nt  term  ; 
but  hath  bien  prevented  by  some  unrori-s  c'l  difljcwlties, 
and  will  be  rr^id.v  witli  liis  phits  after  this  dav — his  eausc 
therefoie  should  he  continni'd;  but  as  he  has  no' osed  all 
the  dili}<eiue  that  he  inijjht  hav  used  to  pnnare  fir  tho 
ti'ial,  theiefarearcoidiue:  to  lite  act  of  1779.  c   4,  s.  5,  lie 
must  )>a_v  al!  the  costs  Hcrriieil  a'  this  term  ;    which  are 
not  to  be  lefmided  to  hiin  even  although  he  should  r\en- 
tualiy  jirevail.     Ratlier  titan  submit  to  th-se  rondiiions, 
'    tlie  Plaintiff  thoucjht  proper  to  pi-oci-ed  to  trial  ;  and  up- 
on the  trial,  it  appeared  that  Dijer  a>'<l  Carroll  li  'il  b^en 
the  proprietors  of  the  laud  out  ol  wliirh  tio-  hit  was  ta- 
ken ;    >hat   they  ronvcycd    to  the   Plain'iff' s  f. ith  'f.    hy 
deed  dati-d  thi-  iiiiiHi  of  May.  1763.    I'^  exiHMiion  hy  Car- 
roll only  had  been  proven,  and  if  liad  bt-rti  iCtjistrrcii  u- 
pon  that  proof;   and  the  PlainilfT  was  proM-<l  to  be  the 
heir  at  law  of  the  bargainee      On  the  other  sidi-  it  ap- 
pearefl,   that  on  the  22d  of  Nnveinber  1764,    Diier  and 
Carroll  and  others.    a.ssi_e;nees  of  the  estiiii^  of  thcr  first 
mentioned  Carroll,    cotu'vcd    part  of  th:s  I'true  iiiri  of 
lanil  to  Edmond  Fannins^,  and  on  the  same  day  Dyer  and 
wife  conveyed  another  paii  tliereof  to  the  said   Kdmond 
Fanning;  and  it  seemed  to  be  admitted  that  the  lot  con- 
veyed to  Park,  or  described  in  his  deetl,  lay  somewhere 
within  the  lot  conveyed  to  Fanning.     Tin-     d  of  May, 
1775.  Fanning  convex  ed  to  Cochran,  la'her  o''  the  Defen- 
dants, who  is  now  decea'-ed      Fanning  hefwren  liie  cnin- 
mencemeul  of  the  year  1764,  and  tiie  jear  1766,  built  a 
house  upon  the  lot  now    claimed,   .md  was  soiiietime  iti 
erecting  hiiildioijs    whirh  when  bull'  had  fall«*n  down  ; 
after  which  time  he  had  no  actii  il  possession — he  had  no 
actutl  possession  to  tlie  time  of  his  cuiveyaiice  to  Coch- 
ran.    Cochran  took  possession  in  t775.  and  that  pisses- 
sion  has  h'-en  continued  to  the  present  time.     Parks  had 
never  any   actual  possession.       I'his  being  the  evidence, 
jMr.  Williams  for  the  Defendani.   ino>ed  tliat  the  Plaiii- 
tift'niight  lie  called.      He  cii'il  iiiiiiiy  autiioiities  fioiii  the 
English    b  oks  to  prove  thai  unh'ss  a  man  has  entered 
viiihiii  the  time  limited  bv  law,  he  can  never  enter  after- 


(180) 


Haywood's  keportsv  207 

wards,  but  losps  his  li.ift.t' ori"ii!r>.  That  here  was  anApr.i795. 
advei'se  iiosspKsion  in  Fanning  bpiwoi'ii  die  yrars  1764  ^■^~^''^*^ 
ami  iTGQ  mid  fl)p  j)  issi'ssi'iii  ■<t\v\-  bi-ini;  ndve'sp  need 
Mill  bo  (-oiitii;Up(l.  TIiui  Cochran's  p')  scssioti  coiiiiDon- ' 
ced  III  irrS,  ami  v\  as  ;iii  ncMial  adverse  (icissp,ssiii'i.  But 
per  curiam,  ilionsrh  'he  law  as  stated  by  Mr  fViUiams, 
is  so  ill  En^l.iiid,  ypt  it  is  diflTt-rpnt  in  this  country — in 
this  ((lunii-y  ihcre  is  no  neiessity  fir  an  piit?-j,  until  an 
actual  advpi Si- [lossession  ciiiiiinpMi'e.s,  and  that  actual  ad- 
verse posspssion  must  be  rontiiuipd  for  seven  years, 
wiilotiil  entry  orelai'ii  on  the  other  side,  belore  it  ran 
toll  111"  I'laintiff's  i'i.:Lclit  oC  entry.  Tliecontrary  doelriiic 
in  this  coniirry  would  he  attended  with  consenuenccs  ve- 
I'y  fatal  to  titles  for  IhiuI.  Accurdina:  ^a  Air.  Williams' 
position,  if  a  mull  Intd  title  ta  a  trart  of  land  wtiiv  h  he 
had  not  been  upon  for  seven  years.  D  fend.uit  ni.xt  day 
after  tlie  seven  years  expired,  inis^ht  enter  without  any 
colour  nftitle,  and  hold  il  forever  against  (he  tirsi  law- 
ful propiietor.  Fannlh^'s  p  issession  was  not  continu- 
ed looker  than  tiic  h.Mise  was  buildiiija;.  The  next  adverse 
possf-ision  of  .(Vr.  Cochran,  coinnienreil  in  t775  ;  from 
that  time  to  the  first  of  June  1784,  the  operation  of  the 
act  of  limitations  is  siispenilcd  ;  an  I  in  1784,  before  the 
act  bi'san  to  run,  the  PhiintiH's  fiiher  died,  leaving  the 
IManitiff  all  infant,  and  hi-  continued  an  infant  till  just  be- 
fon-  'he  romnuMireniiiit  of  ihis  m  tion.  so  that  the  i'l.iiii- 
tifFoa.i;ht  not  to  De  nonsuneil;  buf  afterwards  at  another 
stage  of  this  trial,  a  juror  was  wiihdrawti  for  another 
reason. 

Note. — As  to  the  continuance  see  Tijce.  v.  Ledford,  ante  26.  Upon 
the  utlit-r  question."!  see  the  note  to  Slnuiicick  v.   Shuiv.  ante  5. 

The  surviving  Partners  of  A  uley  M'Naugliton  and   Co. 
V.  John  Nay  lor. 

Debt,  and  payment  pleaded;  and  tiicjnry  lieing  called 
Mr.  ^pillar  'mhiIiI  Ioim-  ph-aded  a  iilea  puis  durrciii  con- 
timiance;  hnt  per  curiam,  the  court  musi  be  satisfied  of 
the  jwobabie  iiuth  of  ihe  n'ea,  bet'or"  iliey  will  permit 
it  to  be  maih' ;  and  cited  Buller  309.  2  ,-1/0.  307.  Feiv. 
181.  Cro.  Eliz.  49.  And  Mr.  Spiltar  not  being  abie  to 
satisfy  liie  ourt  on  these  liea<i...  ';■  Wd.s  nm  permitted  to 
enter  his  plea.     See  2  ffils.  137,  138,  where  it,  is  decided 


208  HAYWOOD'S   KEPORTS. 

Apr  1795-  that  the  court  cannot  reject  a  plea  puts  darrein  contimt- 
^.^-'■>»-'  mice,  if  verified  by  nffidavii ;  also  1  Sir.  492.     3  Term, 
(181)    554. 

Note Vide  also  Chit/y't  Pleadings,   Vol.  \,  p-  638. 

Pcale  V.  Folsome. 

At  the  pleadiu.i;  term,  the  Defi-ndant  pleaded  iton  tst 
factum,  and  coniiiiions  pi  rforined  ;  and  afierxvards  at  a- 
iiother  Iciin,  the  ins  ilveot  debtor's  act.  Mr.  Hay  insist- 
ed, that  was  intended  as  a  plea  puis  darrein  continuance, 
and  iliat  it  was  a  waiver  of  the  preoeding  pleas.  It  was 
insisted  on  the  other  side,  that  it  was  not  a  plea  puis  daf' 
rein  continuance,  tiot  havin,^  been  so  pleaded,  nor  entered 
on  tlte  rei  Old  as  sucii.  Per  curiam,  were  it  a  plen  puis 
darrein  continuance,  the  plea  of  -non  est  factum  wonld 
be  lhei-eby  vxaived,  and  you  would  ha\c  no  need  to  prove 
the  execution  of  the  bond  ;  but  onl-ss  the  other  side  will 
concede  it  to  be  a  plea  puis  darrein  continuance,  the  court 
caninit  take  it  to  be  so.  It  docs  not  purport  in  itself,  nor 
by  the  entry  of  it  on  ilie  record,  to  be  a  plea  of  some  new 
tnatier  arisen  since  the  last  continuance.  -It  might  have 
been,  and  probably  was  a  plea  added  to  the  others  by 
motion  to  the  court,  or  by  consent  of  the  opposite  party, 
as  an  original  pl<a — a  juror  was  withdrawn  by  consent. 

Note. — Vide  Oreer  v.  Sheppard,  ante  96, 

M'Mnrphey  v.  Campbell. 

Process  returned  by  the  Dppui  y  SherfT,  sh'iuUl  be  in  the  name  or  the 
Higli  Slierifr,  and  nut  in  ihenaiie  ot  ihe  Deputy,  for  Ihe  High  She- 
riff; but  a  return  in  the  Utter  mode  was  supported. 

Campbell  bad  been  summoned  on  the  part  oi  M'Mur' 
VideCa.T.  p]igy  („  attend  this  court  as  a  witness  in  Ills  behalf;  and 
vol^S  440.  ^*  hen  the  trial  came  ini,  failinu;  to  appear,  was  called  up- 
on his  s«i>;)ceKa,  and  iiis  default  recorded;  whereupon  a 
sci.  fa.  issued  ag^iinst  him,  and  now  his  defence  was. 
that  he  ne\erwas  summoned  by  any  proper  officer.  The 
subpceua  when  produci  d.  appeared  to  have  been  served 
by  tlie  Dvpiity  Siientf,  aod  retunnd  by  him  in  his  owii 
name  for  iiie  High  Sheriff,  and  not  in  the  name  of  the 
Higli  Shei  iff.  as  it  sluiuld  have  heen— whereupon  Mr. 
Spillar  o'lpcted  that  the  Deputy  Sheriff  was  in>t  a  sworn 
officer,  which  was  conceded  in  the  present  case,  and  (lint 


Haywood's  ueports.  209 

(lierrfore  as  the  iiMmn  was  made  by  Iiim.  and  not  in  thn  Apr.  1795. 
name  (ifflie  pri!Ki|ial,_  it  wns  no'  h  jjjood  si'i-vice.  Per  '-^^^'"'^^ 
curiam,  the  letiirn  hert-  is  fi>r  tin-  piinciiml  by  the  Di'im- 
ty,  winch  is  iir;irly  the  .same  tliiii.a;  as  if  thi^  return  had 
been  "cxe'iitfd,"  anil  the  nami-  of  the  principal  subscii- 
bed,  and  ihc  wmils  "by  \.  B.  Di  put*  Sheriff"  added, 
which  is  the  usual  course.  This  return  is  indeed  a  lit- 
tle irre?;uhir,  but  it  cannot  now  he  au;euded,  the  princi- 
pal being  dead,  and  the  De|iuiy  removed  out  of  the  State.  (182) 
Such  leturns  ho\ve\er,  tliougii  irregular,  have  prevailed 
very  generally  (hrongli  the  ciiuntr\  for  a  long  time,  and 
t!ic  disallowing  titeui.  would  he  pr.duriive  of  terrible  in- 
conveni''nce.  Communis  error  J'licit  jus,  is  a  -.naxitn  we 
do  not  approve  of,  but  it  inust  -omitinies  be  submitted  to 
for  the  saite  of  avoiding  confusion.  'I'he  course  "f  |>rac- 
tice  fieipiently  makes  the  law,  and  must  he  ^iven  way  to 
where  a  sudden  disailnwHfii'P  of  it  viouid  be  followed  by 
a  great  public  evil.  In  strictness  however,  there  is  no 
doubt,  hut  liiat  all  returns  should  be  made  in  the  name 
of  the  High  Sheriff.  Salk.  96.  Bac.  Mr.  427.  1777, 
c.  8.  s.  5  So  the  objection  was  overinlcd,  and  the 
Plaintiff  had  judgment. 

ride  Scute  V.  JoUitfton,  posl  293.  Itolding  v.  lloldin.y.  2  Cav.  Lin: 
Rep.  440, 

Duncan  M'llae  v.  the  Administrators  of  J  Moore. 

when  "  no  assets"  are  plead,  t  le  Pliinliff^iiiull  have  jiul.nment  for 
the  amount  if  tiie  assets  which  li  -  ca.»  show  in  :he  hands  of  the  Ad- 
ministiMtor,  ancljujginr.it  qnanilo  for  the  balance  ot'his  'lebt. 

Set  off  and  no  assets  pleailed.  The  d^bt  was  one  hun- 
dred aod  fifty-four  pounds  two  shillings,  and  Flaintiff 
proilured  the  inventoi-y,  shewing  ass>ts  to  the  value  of 
one  huudied  and  t»ciity-four  |iound->  eighteen  shillings 
and  SIX  pi-nce  ;  and  the  jiny  gave  iheir  verdict  accord- 
ingly— whereupon  the  Plaintiff  had  jud;;Hient  (or  ime 
liundred  and  twenty-tour  pnunds  eighteen  shillings  and 
six-pcnc  ,  to  he  levied  of  the  goods  of  the  deceased,  in 
the  hands  of  tiie  administrators  ;  and  for  the  residue  he 
had  judgment  to  be  levied  of  'he  assets  which  should 
thereafter  come  to  the  hands  of  the  administrators  to  be 

adnilnislered. 

Vide  8  Rep.  '  34.  Stciiib.  392.  Leon.fol  67.  1  Jlnd. 
'  50.  The  Office  of  Executors,  p.  191,  says  Plaintiff  sliall 
.ave  judgtnent  for  as  much  as  Defendnnt  hath  assets  to 


*1^  tlAYWOOD*S   REPORTSi 

Apr|i795- pay,  and  an  award  that  quando assets  acciderint  infuture, 
'-^^'^^  tliat  tlicii  hv  shall  have  ji.dgtnent  for  th.   residue,  upon 
which  award  a  sci.  fa.  lies  Jo  have  judgment  and  execu- 
tion.    Co.  Ent.  151.  6. 

NoTB      Vide  1  Sound.  336,  note  10,  for  the  form  of  the  judgmen 
in  such  case.     See  al»o  Oregory  v.  Uooker')  odmr.  1  Dev.  442. 

Jamieson,   assignee,  v.  Farr. 

A  bond  payable  partly  in  money  and  partly  in  specific  articles  is  not 
negotiable  under  the  act  of  1786,  Jiev.c.2iS. 

Debt  upon  bund  for  fifty  pnunds.  dischargeable  parf 
in  moMoj,  and  part  in  specific  articles.     Afr<^  verdict  it 
was  ino\ed  in  anest  orjiiiigmfnt,  iliat  (his  bond  is  not 
assigiial)l<"  so  as  lo  enable  thi;  assigtiee  to  bring  debt  in 
his  c»wn  name;   and  it  was  argued  that  no  bonds  are  ne- 
gotiable unless  for  immcy  absolutely,  n<it  Wnere  they  arc 
for  money  and  something  else  beside,  or  for  money, 'b'^t 
to  be  dischargeil  in  something  else.     In  support  of  this 
doctrine,    were  cited  Kidd  on  Bills  32,  where  it  is  laid 
(183)    down,  that  the  instrument  must  be  for  m.)ney  in  specie, 
not  to  be  paid  in  good  East-India  bonds,  or  any  thing 
else  Init  money  ;  also,  3  H'ils.  213-     Bull.  273.     2  Str. 
1271.     Per  curiam,  the  act  of   1786,  c.  4,  makes   only 
bonds  for  money  ni-gotiabie.     Bonds  for  specific  articles 
could   never  answer  the  purposes  of  trade,  not  being  the 
rcpt'seotrttives  of  any  certain  value  as  money   is.     The 
assigiu'e  of  such  bontls  could  never  know  how  much  mo- 
ney to  expect  in  lieu  fheirof,  neither  could  he  know  whe- 
ther the  debtor  would  dischaige  the  bond  in  the  stipula- 
ted article  or  in  money.     But  bonds  lor  money   are  of 
a  certain  precise  value,  the  payment  must  be  in  money-— 
the  assignee  knows^  exactly  how  much  he  is  to  receive, 
and  when  upon  a  man  of  good  credil,  may  be  readily  sub- 
stituted, for  the  same  sum  in  money,  or  almost  with  the 
same   advantage-  as  if  it  were  money,  without  any  dan- 
ger of  being  aftfrwards   involved  in  disputes  abouf'tlie 
valin' — whicii  in  the  case  of  bonds  for  specific  articles  is 
continually  fluctuating,  and  de])i-nds  upon  a  great  varie- 
ty of  ciicum-tanccs.     For  these  reasons  the  law  lias  ne- 
ver made  bonds  for  specific  articles  negotiable,  hut  only 
bills,  tn)tes  and  bonds  for  money.     The  cases  in  3  ll'ils. 
313,  and  in  Kidd  32,  are  precisely  similar  to  the  pnsent, 
and  the  reasons  for  these  decisions  are  strictly  applic-a  • 


Haywood's  reports. 


211 


ble  to  the  case  now  brfoie  iih.     On  the  scopp  of  reason,  ^^^^^;^^ 
the   pipsent  chsp    oiuiot  bi'  disiinscislied    from    iliem, 
theieloie  tin- jiidii'iicnt  must  be  aii-phtid — and  it  was  ar- 
rested iicfor<liiis;lv. 

NoTt— Tirfe  Tinilall's  exrs.  v,  Johnston,  post  372.  Campbellv.  Mum- 
for^i, post 59S  Tnompsimv.  Giitj!atiii,2  f/aij  loi).  Wofford v.  Green- 
lee, Conf.  Jirp  79.  Tlie  uw  i,.  tiif-  snir.c  ,t  iioiids  jjayable  on  a  con- 
tingency.    Goodioev.  Taylor,  3  liawka,  iSS. 

Anonymous. 

Payments  made  in  the  depreci-ted  currency  prior  to  1783,  shall  dis- 
ctiiirge  tlie  same  numerical  sum,  as  their  nomm-d  v  lue. 

Tbis  was  an  action  of  debt  upon  a  bond,  diit'  d  '■«'  21st 
Marcb.    1776.    jiayalile  in   September.    (776.   f.r    2200 
pounds,  and  |ia>ment  pleaded.     Tbere  was  uNo  .uiother 
bond  for  seven  linndrcd  and  ibirteen  poui.ds,  opoii  wbich 
a  suit  bad  bico  instituted  in  tbe  county  court,  and  pay- 
ment pleaded  lo  tbat ;  and  the  same  ()ayments  were  tbere 
proven,  as  wei-e  now  pro\eri  to  tliis  bond.     But  it  wag 
alleged  tiiat  'hese  payments  were  large  eiiou!;ii  i<>  dis- 
charge both  bonds,  and  the  Di  lendant's  rounsel   off  ted 
that  the  amount  of  the  principal  and  interest  of  tbe  small 
bond,  might  be  deducted  from  tlic  payments  now  about 
to  be  proven,  and  tiie  balance  of  'he  payments  only  to  be 
applied  to  tbe  disriiarge  of  the  present  bond.     To    his 
tbe  court  assented — and  be  proxed  one  liiinilred  and  tea 
pounds  sixteen  shillings  and  eight   pence,  paid  the  19lh 
day  of  January.  1777;  nine  hundred  pounds,  the  17th 
day  of  November,  1779  ;  one  thousand  two  hu^dl'ed  and 
thirty-seven  pounds  ten  siiilliugs,  the  22il  day  of  Jaiiua-    (184"> 
ry,  1780;    .<iid  ten  tbousami  pounds  the  26)hof  May, 
1780.     All  of  these  sums  but  the  first,  were  in  depiecia- 
ted  money,  and  if  reduced  into  money  of  tiie  presen'  cur- 
rency, by  appliration  of  the  scale  at  the  several  times  of 
payment,  would  amount  to  about  the  sum  of  three  hun- 
dred and  forty-nine  pounds  four  shillings  and  ten  pence. 
But  if  taken  as  payments  according  to  tbe  nominal  value 
wiien  paid,  both  bonds  were  discharged.     The  counsel 
for  tbe  Plaintiff  con'cnd'-d,  that  tbe  payments  oujsjbt  to 
be  scaled,  and  that  ilii-'  had  been  tbe  practice  of  t|ic  courts 
heretofore  in  diver-  in'<tancps — that  to  allow  them  as  pay- 
ments according  to  the  nominal  amount,  wnuld  be  injus- 
tice to  the  Plaintiff,  as  Iuh  binids  wouM  then  be  dischar- 
ged by  one  tenth  of  their  value ;  and  he  urged  that  the 


212  Haywood's  nBPonTt. 

Apr  •''95.p3ymp„fs  madr  btMtifi;  imicli  bpyimd  the  sums  coiitnined- 
*"'*'^'^"^^  in  ilic  honds.  affnrilpd  an  evidi-nre,  thai  tho  Defendant 
believed  liimself  lioiind  to  p;tv  as  mncli  ol'  the  depreriated 
niDiiey  as  was  eqiiivulent  in  i-eal  *alue  to  tlie  sums  men- 
tioned in  the  bunds.  He  arjincd  Cui-tliei".  that  the  Lejjis- 
latnie  iht>  nded  payment"*  innde  in  the  time  nF  the  w.ir,  to 
be  I'wliiced  by  tlie  sciile  to  iliiir  ical  value ;  lor  1783, 
c  4.  s.  11.  repeals  the  teudei-  laws,  so  fir  as  tiny  rela- 
ted to  the  payment  of  ilebl  ;  and  by  sec.  7tb,  have  ousted 
all  pU'i'S  of  lender  Aith  (in  always  re.iil\,  alleged  to  be 
made  in  'he  timeoltlie  war,  unless  siicli  pleas  be  aeiom- 
panied  witli  ;ifliilavits  stating  that  the  sum  tender^  d,  was 
.  equal  ar  tlie  time  of  the  tender,  to  tlie  debt  or  damag;e 
demanded,  arroi-dina;  to  the  tlicn  fiepi-eriaiioo  ;  and  aa 
no  tender  of  the  inxninal  debt  made  in  limes  of  depreci- 
ation is  good,  as  by  this  an  il  rlearlv  is  not,  hv  Hie  same 
reason  no  payment  made  in  depi'eciated  mone).  ought  to 
pass  to  the  credit  of  a  bond  for  more  than  its  real  value. 

Per  curiam,  it  hath  been  tlie  constant  practice  ever 
since  ihr  passing  of  this  act,  that  payments  made  in  the 
time  of  dipiecia'ion,  should  dischai-gc  as  much  of  the 
debt  as  such  paynsents  noniin.illy  amounted  to.  A  con- 
trary decision  at  this  time-,  would  levive  many  of  the  old 
disputes  liiat  have  been  settled  by  tha^  rule,  and  p  oiluce 
'  much  liti(;ation.      When  pajnietits  were  made  in  depre- 

cialeil  money  in  the  time  oi'toe  \mm'.  they  were  gein-rally 
undci'stoud  to  be  e()ual  to  the  same  nominal  sum  in  the 
bond — Itotli  sums  were  ec|ually  <leprpciated — lioth  the  mo- 
ney in  the  bond  and  moiw  y  paid  Had  the  cr<'ilitor  su- 
ed for  his  debt  he  could  have  lecovereil  no  mine  than  as 
mi.cli  depiei  iated  nioin-y  as  numerically  equalled  his 
debt.  When  he  received  depreciated  money  for  hi-  debt 
pound  for  pi'Und.  or 'hilling  f"ir  shilling,  he  received  pre- 
cisely will*  'lie  law  Hllllv^rll  liini,  and  what  i-i  would 
ha^e  compelled  the  debtor  to  p  ly  Uniler  the  la«s  then 
existing,  tin-  drhlor  \Aas  discliaiced  pro  ta>ito,  acroiding 
to  tlie  iiuinerical  sum  ;  and  the  acl  ol  1783  did  not  in- 
tend to  lay  any  new  charge  upon  the  di-htor  to  whirh  he 
Was  noi  siilijecl  befor-e,  or  from  whicit  he  had  been  dis- 
charged under  the  operation  of  the  lender  laws,  iuid  |iay- 
ments  ni'ide  befoi-e  lh;it  tiun — nor  i^  il  clear  th  Legis- 
lature (onlil  have  thu-  s-bjectid  him.  had  lliey  been  so 
inclined.  The  art  of  1783,  meant  only  to  rejieil  ilir  len- 
der laws,  so  that  they  should  not  ojierate  for  the  future. 


U85) 


HAVWOOU'S    UEPORTS. 


213 


not  to  destroy  the  effict  and  oppiRtion  of  tlie  laws  upon  Apr. i795. 
transactiniis  'Iihi  IikiI  iilip:t(l^  hik^ti  pliicr  iindci  tlirm. —  ■«.^>'>»-' 
It  tn'ist  111-  /idiiiiitrd  tli;it  u  prfjiM-nl  ii'j.di'  in  III'  time  of 
till'  wai  <if  iliP  v\liiiic  iiiiiiiri'icHl  siiin  dup  ii|.i>n  h  hmid,  is 
a  logul  dis<  liaigc  of  tliHt  botxi.  aMi"ii_a;l!  i|ii  re  I  \;i!iie  of 
the  j»ii)'m»'rit  was  nnicli  iiifcrioi- tn  the  leAl  value  ''the 
inoiii-y  meiitiiMied  ill  ihc  Ixnui  aflhe  <inie  of  the  roiitract : 
fur  no  iiistmiie  ever  ncciirrid  sMire  the  war.  wh>re  siirh 
p.:>itietit  has  been  redti<ed  lij  the  -iciiif — and  if  the  law 
be  s(i  ill  rase  nf  I'lilj  [i;:\  iiieiits,  s(»  it  is  rtlsn  i"  ease  if  nar- 
tial  <r.<s.  Tlu  <;t-^  iiiiw  btfMie  IIS  is  that  of  a  Cull  (^y- 
nuiil.  Indeed,  if  ;s  in>'  f'.uiMJcd  i»i  Jnstire,  thi.t  the  rre- 
di'iir  shnll  n■(e^^e  the  f-  II  valii"  «(  his  nionej.  ■am\  be  ex- 
eitiped  eiitiiel\  finlll  sill  loss  l»\  deprcciiition,  wln-ii  the 
delitof.  «h"  pfiljaps  priicuii'd  the  nnniey,  nr  senii  Mies  " 
fi)i-  tiKiiii-y,  at  an  e;irl\  period,  when  tin-  i  iirreiiey  was 
but  little,  if  iit  all  dei'sei  iated.  iiiniidiiij;  ilu  rewitii  '"Jiay 
off  liis  debt,  sliall  br  allnwed  only  th"-  real  valntf,  when 
he  rectiM'd  f' om  bis  deliinr  and  jmid  it  to  bis  Cf.  ditor, 
and  vei-j  lik'>!j  did  this  at  the  request  of  liis  creditor. — 
D'  preei  iti'iii  was  a  cnnsi-quenre  <if  the  war  carried  on, 
as  well  lor  the  betiefit  of  the  rieditor  «•<  llic  de'.tiir.  and 
lie  (Kiqht  at  least  to  heai-  a  part  <if  this  burthen.  •  As  to 
the  ar.mJinfii"  dra^ti  fV  nii  ilie  7t!i  sec.  crih-.  :ic!  of  1783, 
that  act  st'  pprd  the  cirriibiiiDii  if  the  dcp- r(  i  t'  i-  paper 
currency,  ai.d  hi-.d  it  not  made  some  pruxisinu  lor  'he  ra- 
ses (if  tenders  made  in  the  tiinr  of  depreciation,  the 
Plaintiff  wbi-rever  a  lej;al  lender  bad  In-eH  niaiie,  wmild 

by  liie  'Mieration  of  tliis  act,  h  tve  b-en  barred  forcvi-r .. 

Tin-  Dct'eiidant  inii^lit  haw  ph-.ided  the  'ender  with  an 
alw.i_\s  ready,  and  liave  (laid  the  inoucy  that  had  been 
teiVdered  into  court,  l"a\iii,^  llie  Plaiotilf  no  ntber  aiter- 
nati\e,  but,  to  take  that  or  jnin  issue  :  in  which  latter 
case,  if  the  plea  proved  to  lie  true,  he  was  Iwrreil.  Tliis 
would  have  been  a  Case  of  liardsbiji.  especially  where  the  (igff^ 
ni' i)i'>  had  been  refused  brcause  of  iis  .^jient  iiiadeqiiacy 
ill  p'>!iit  of  value  to  the  contract — his  hardsliip  was  pre- 
vented by  the  clause  in  (piesttou.  It  says  nothing  of 
pajnients  a<tiially  made — it  only  provides  a.c;ainst  a  to- 
tal loss  ot  the  debt  where  ilic  Piaiiiiiffhas  not  received  the 
money,  and  only  extends  to  cases  after  a  certain  day 
wheti  the  nionev  bail  bi  come  greatly  depre.!  iated,  not  to 
ca-''s  before.  It  only  |iliices  the  dcbt'ir.  wlio  had  mado 
an  uiicoosrioiiable  lender,  in  the  -  une  situation  with  one 
wlioliad  made  no  tender  at  all.     But  this  is  a  very  differ- 


214  uaywood's  nEPOR'^s. 

Apr.  1795.  ent  Uiing, from  a  payiiK-nt  artually  inailp  and  accepted, 
-"^^^'''*»^  and  niniirst'incl  at  the  time  to  bf  ;i  di'^rhargf.  But  if 
thr  tca'idii  of  i|pp  Hiint;  l>i'  ii'i<  in  t'ppi-s'ion  fo  Mio  doc« 
trine  conlci.ded  for  »u  the  part  of  the  PlHiotifT.  ihc  ron- 
stani  jirMrtiie  of  oui- (ouits  hi»th  been;  and  «eouslitnot 
to  rendi'f  the  law  unrertaio  by  a  contrary  decision. — 
The-PJaimiff  .suflTered  a  nonsuit. 

Lury  Lee  v.  William  Ashley. 

Tre.'spass,  quare  clausum  Jregit ;  -noi  j°;uilty.  and  lihC' 
rum  tevementum  pleH(l>d.  It  appeared  in  evjjlenre,  that 
the  I -Mid  on  >\i.irh  ijie  tiispiss  is  allejjed  to  ha^e  heen 
Committed,  was  a  tract  of  i«o  liuni'reil  and  tliiiiy  acres, 
which  WiiM  part  (if  a  tract  ■  f  fittern  hundred  acres,  of 
which  Zuchariati  Lee,  the  hnsitaud  of  the  Flaintilf,  died 
seised  ;  who  at  the  time  of  his  death.  U  It  a  son  and  heir 
at  law,  now  of  the  age  of  thirty-one  yeais.  Tlii"  son 
had  soi(!  all  the  land  except  the  two  huiidr.d  and  thirty 
act es,  some  cii'^iderable  time  a.2;o;  then  h-- sold  the  re. 
sidue  to  Jo/i?i  Field,  who  sold  to  the  present  Defendant. 
The  Plaintiff  had  kept  possession  fr<>ni  fiie  death  <>l  her 
hnsh.Mid  until  the  conveyance  to  Field  of  the  residue* 
whicii  lately  fool<  plare.  She  *erlially  assented  to  this 
latter  conveyance.  Field  arid  Mie  sim  on  their  parts  a- 
greeiiii^  'hat  she  shiinlil  possess  cue  hundred  acres  du- 
ring her  life.  Upon  these  fact  ■:  the  roiii^sel  for-  'he  De- 
feinlani,  insisted  lliat  the  plea  <■{  liberum  tenemenfam  wa« 
supported.  He  argued,  hat  tl-ough  i  iie  soineiinies  laid 
down  in  the  IrMiiks.  (hut  pnsHesslnii  is  of  iiS'lf  snfficient 
to  support  an  action  of  trespass,  quare  clausum  fregitt 
and  thai  the  acfiim  of  Mespas.s  is  »t\  acti'oi  for  the  viola- 
tion nf  possession,  the  t  ue  distinction  is,  that  posses- 
sion only  is  suffici'-nt  10  suppo't  ihe  aciiioi  ag.iinst  a  mera 
trespasser,  who  h<ili  no  <ause  ot  justiKcation  or  excuse, 
01'  in  other  words,  against  a  wrong  doer.  2  Str.  1238. 
Bull.  93,  But  where  the  Defendant  hath  -he  fr.-.hold, 
(l87)  "'"'  pleads  it,  there  a  bare  possession  is  not  sufficient; 
foi  iheii  the  entry  of  tiie  Defendant  is  lawful,  and  not  a 
trespass.  In  such  case  tic  Piarn'lff  can  no  olhei'wise 
support  till',  iiclion,  thai:  by  shewing  an  iitei-est  in  the 
soil  or 'lie  profits,  eitlit  r  ilei  it)  il  under  the  Defendant, 
or  precedent  to  his  title,  us  will  take  away  the  Defend- 
ant's right  to  cuter  for  the  present.    Sooio  of  tliess  rn- 


Haywood's  report-s;  216 

slaiiccs  are  staled  in  BuU.  85.  in  the  case  of  Welch  and  Api-.i/Qo. 
Hall  tliere  cited  ;  and  others  in  3  Bl  Com.  210.  Bull.  >.^~*">^ 
93,  94.  Hci'o  imlffd,  the  Pliiiiitiff  liafli  rDntiuueil  ilio 
possession  from  the  time  of  her  hushaml's  'leath.  but  mj)- 
on  ills  dcitth  ihe  fee  and  fieehold  descended  to  tlic  son, 
who  it  is  proven  lived  npoii  the  iand  with  liis  motiier, 
and  coiiseqniMitly  had  Ihe  legal  possession  ;  and  he  hut!* 
conveyed  both  the  fee  and  freehold  to  the  Detendiiit:  his 
entry  wah  therefore  r^sjiil  ir,  uidess  it  can  be  shewn,  not- 
withstamliiig  the  Defendant's  having  Ihe  frtehold,  that 
she  hath  a  rigiit  to  inainiain  her  possession  a.a;ainst  him. 
She  liatli  iM)I  rcpli.-d  Jier  ha\  in.<  any  such  interest  by  vvaj 
of  axoidin.^  the  ;)leH  n{  liberum  teuementum  :  iinlced  the 
fact  is,  she  liath  no  such  interest  to  reply.  It  hatn  been 
argued  for  her,  that  npoo  »he  death  of  lier  intsband  she 
had  a  right  to  cuntinne  the  possessiim,  notwithstanding 
the  heir's  title  nniil  her  dower  sliouid  be  assigned  ;  and 
for  this  iier  conn.sel  citi-d  2  5(.  Com-  135.  Allowing  the 
fullest  extent  to  this  doctrine,  she  >  ould  continue  but  for- 
ty days  in  (lossession,  and  after  the  expiration  of  that 
time,  if  her  (l()\ver  had  not  been  assigned  in  the  interim, 
she  Was  liable  to  be  tni'ned  out  id'  possession  by  the  heir, 
and  could  have  no  other  action  but  that  of  doWer  to  re- 
cover the  possession  of  any  part  ;  though  ber)re  the  ex- 
piration of  tin-  forty  days,  Ihe  old  law  provided  her  with 
.'»  writ  de  quaranilna  liabenda,  i»  he  derided  imtanfcr  bj 
the  Sheriff.  Co.  FAtt,  St,  b.  Z  Inst.  16,  hut  no  such 
writ  lying  after  the  forty  days,  is  a  proof  that  she  was 
no  longer  eniith'd  to  possession  tliougli  her  dower  were 
not  assigned.  Had  the  law  inlended  that  her  possessi- 
on should  continue  until  the  actual  assignment  of  dower, 
it  winild  have  pro\  idcd  a  remedy  in  case  of  disposses- 
sion previous  thereto. 

As  to  the  doubt  suggested  by  one  of  the  cotirt,  relative 
to  the  estate  in  dower  being  considcied  as  a  part  of  the 
estate  of  the  deceased  still  continuing,  so  tiiat  the  law 
does  not  cast  the  freehold  thereof,  but  only  the  reversion 
upon  Ihe  heir;  fm- which  were  cited  the  autliorities  of 
Co.  Litt.  941.  a  15,  a  31,  a  and  6  327.  44,  45.  (see  also 
Qilbtrfs  Ten.  23.  Hawk.  .Hbr.  23).  The  best  atiswer 
to  tliat  is,  2  Bl.  Com.  135,  1 36,' where  it  is  said,  the  as- 
signment (ddo-vtr  must  be  made  by  'he  heir  or  tiis  guar- 
dian, to  entitle  the  lord  of  the  fee  lo  demand  iiiswervices 
of  llie  heir,  wiio  by  his  entry  to  assign  dower,  becomes 


316  haywood's  rbpokts. 

Apr.  ir95,t,^i, lint  of  tlio  laml  to  tin-  loi  d,  an  I  tin-  "widow  immediate 

^•^"■''^^  UTi.iiit  ">  liiin.     WU-iicc  H  f.>ll(nvH,  that  Hio  heip  Ims  the 

(188j    rtijlit   Mf  .iitry   and  fi-elidd,   wliirli  tin-  Uw  casts  upon 

iiim  fr'iiii  tli<'  iiioiniMit  lit' tiic  ancestor's  deatti,  and  not  a. 

I'eversioii    only. 

Pit  curiam  ;  we  oniPi-tain  snmi"  do'il»t  upon  the  facts 
stateu  in  cvidi'iioi'  relative  to  this  plea  *){ liberum  teneinen- 
tum — li^t  till- jury  .ujivo  iheir  verdict  as  tlicy  shall  liiinic 
prt>p' !■ ;  and  if  eitiier  party  he  dissatislied.  he  may  move 
for  a  new  trial,  mid  fhen  the  law  vvi||  be  ainie dt-liberalc- 
ly  cmisidered. 

Th'jiiiy  loniid  for  flic  Defendant,  and  the  cause  was 
no  more  stirred. 

Note. — M'lien  tlic  plea  ol' liberum  tenemtnium  is  pleaded,  which  is 
calleil  till-  CDiTiinim  har  in  tiif  actum  r.t  tr.spa-if,  if  the  DetVmlant  has 
not  given  a  iiamr  to,  or  described  rxacily,  tue  Ucus  in  'jm>,  in  his  de- 
clarair'M,  it  btcmnes  neci-ssarv  lor  him  tymake  iinvt!  a-signmenl,  to 
vr'Hflllti.i  DJl-mloil  a^'ain  pic  .'Is  j  bie  if  th-  Plaintift'dfacn  >rs  the 
locus  in  quo  iM\us  declar-  .ti  <n  with  p  ecisioii,  then  the  pka  t<{li6erttm 
teneminpnin  puis  ii  Ujimii  ilie  Urfeiidant  t.i  prove  that  iie  locus  in  guo 
thus  described,  i»  his  tVeeholu;  and  the  Plaintiff  .leed  on.y  d.  iiy  the 
pli-a,  without  a  novel  assig  incn.  And  in  lie  fiisl  case,  il  t'le  Plain* 
tiff  dues  mil  make  a  new  assijnment,  ascvi'tainiiig  tlie  f)lace,.thc  De- 
fendaiii  may  prove  any  cl.'se  iliat  is  the  freehold,  and  that  will  sup- 
port his  plea.  But  the  ir  thold,  I  aopr  li  n  I,  rnust  ne  proved  to  be 
within  til'  piace  aid  for  the  leou.'.  Vitle  2  Bl  Hep.  WS9  Salk. 
453.  6  ^V/o.  119,  bui  if  the  action  .  t  inopiss  ne.  Je  bonis  asporlalif, 
and  the  1)  1'  nda  >i  .iteaded  that  tiie  lociit  m  quo  is  hi>  ficihoid,  and 
that  ihc  f,o.ids  wer.  th  :n  damaije  feasant,  uien  he  must  describe  tlie 
place  witli  i-ertiiiniy — the  llicalitv  is  a  material  part  of  his  plea — anJ 
without  It  I  he  |)l- ■  is  not  go  id.  So  il  to  iresp.iss  the  Ui-tuiidant 
pleaded  sow  assanft  pvoof  of  an  assault  by  the  Plaintiff  on  the  same 
day,  or 'icfor  iIk  uctioii  broug  t.  s.ipporis  the  pi  a  So  th  .t  if  in 
fact  theie  were  two  batierits,  onr  produced  by  the  Plaintiff's  own 
assault,  till- other  not,  the  Plaintiff  must  n>w  assign  and  disiiaBuish 
the  b.ttry  not  brought  on  by  his  own  assault — but  il  .here  are  two 
counts  s  aiiiig  the  iwo  batteries,  and  tivo  justificalions  or  plea',  ot  son 
assault,  ime  of  hem  will  be  untrue,  and  upon  that  tlie  Plaintiff  may 
recover  uithnul  a  new  assignment.     Mutter  92. 

Note, — It  appears  evident  from  the  authorities  cited  on  that  head 
abovi-  tiiiit  the  wife  is  deemed  to  continue  the  esiate  and  possession 
of  tlu  hiisb.uul  aft.  r  his  d  atli  ;  the  reason  of  uhicli  piobaol)  may 
be,  that  if  she  claimed  under  the  heir  and  not  paramuunt,  her  dower 
as  being  a  pait  of  his  estate,  might  be  subject  to  hi>  prmr  charges 
and  incunioraiici  s,  which  is  avoided  by  h^r  claimint;  above  him.  Also 
it  shi;  claimed  under  tlie  heir  and  from  him,  and  wasnotin,  m  continu- 
ance of  her  hiistjand's  estate — ilien  if  the  husband  wa's  tenant  in  tail, 
and  he  died  witliont  issue,  in  tiiai  case  there  woul  i  be  no  heir  nor 
any  estate  tad,  and  she  would  lose  iier  dower.  Yrt  by  1  '\v  she  is 
dowa.'l  ,  ar.d  of  iieces.iitv  ihe  estate  tail  of  the  husband  must  have 
Continuance  as  to  one  third  until  her  death,  yide  8 Hep.  34.  6  Jie/>. 
41.     3  Bcic.  Jib.  127.     .Ag;ain,  were  titc  dower  n  part  ol  the  heir's  i  s- 


uaywood's  uepouts.  217 

tate,  then  by  the  Oescent  he  might  be  reniitled  to  his  ancient  and  Apr.  1795. 
better  title,  anil  the  estate  descended  tlitr 'by.   Cease  altogether,  iin  1  v^^-v-N^^ 
the  widow  be  defeated  of  dower.     Tliis  tlie  law  does  not  iilhiw.     Her     /noq-i 
dower  itjerc-f  >re  is  not  deriveil  out  of  the  heir's  estate,  nor  snpijorted     V      '   ' 
by  it,  but  out  of  the  f  Slate  of  the    luishaixl,   continued   liy   fiction   of 
law  bfter   his  J.-ith  ;  which  fiction  is  invi  nted  for  the    purpose    of  a- 
voidingthe  inconveniences  above  sl;ited,and  others  that  misht  result 
were  it  not  for  this  fiction. 

The  sii!  viviiig  Partners  of  Aiiley  M'Naiighton  and  Co. 
V.  Jiilin  M"K»re. 

J**- Haywood,  Judge — Hitath  of  one  partner  dissolves  the  partner- 
ship, ind  a  clerk  or  agent,  wh->  had  been  api>ointe'l  by  the  com- 
pany, cannot,  aflersuch  dissolution,  do  any  act  to  affect  V\r  inter- 
est of  the  company,  as  to  receive  payments  &c.  But  the  jury 
found  otherwise. 

This  was  an  action  of  debt,  and  payment  ploadcd ;  af- 
ter the  death  of  ^'VvV«)£^/tto»,  Jl'Jiusiin  iiTcived  forty 
pounds,  and  indorsed  it  on  tin'  bond  ;  iv^i\  the  qin'Stioii 
was,  if  this  vvas  a  (ijooil  imyinenr.  It  appeared  in  evi> 
dence,  that  M-JS'aughton  and  Ji£-Jlus!in,  both  lived  in  the 
same  town  b(  fme  t'le  dcaih  of 'he  former.  That  M^- 
J\raught.on  ippoinnd  lln  o  iier  one  of  iiis  clerks,  that  lie 
opeti'Ml  a  store,  and  pot  up  a  sign,  pnipurtin}^  tiiat  tlie 
store  w'.tn  M'Jlasiin^s,  bnt  tlie  books  wi'i'C  kept  in  the 
name  td'  tlic  tompany  :  that  tliis  bond  was  ft.r  a  debt 
contracled  in  iliat  store,  and  was  made  (myrthle  lo  Jlsf'- 
jyaughton  i^-  Co.  M'JS'aughlou  wrote  to  his  correspmid- 
eiits  in  Etiropt',  inlunnine;  tiiem  thai  he  had  appointed 
M'Jiuslin  one  of  bis  clerks,  or  agents,  or  assist.-. ot-*  ;  of 
which  they  ajipioveil  by  their  letters  in  answer  ;  and  a- 
bouL  twelve  montlis  bef.ie  the  death  of  .)/'JV*aitif/i<o«, 
they  add resH(d  letters  to  M'Jiuslhu  as  an  ageni  of  the 
Company.  It  was  argmd  that  this  pa)nieiit  was  not  a 
legal  one,  and  t  Esp.  and  1  Sulk.  27,  were  cited. 

Judge  M\CAY  being  some  way  interested  in  the  ques- 
tion, gave  no  opinion. 

Judge  Haywood  doubled,  and  requested  that  if  the  ju- 
ry should  give  a  verdict  pursuant  to  the  opinion  be  was 
now  about  to  deliver,  and  the  bar  shouin  be  at  all  dissa- 
tisfied wiih  it,  that  they  would  by  motion  for  a  new  rial, 
or  by  some  other  means, put  the  question  upon  record,  in 
order  to  a  further  investigaiion — his  opiui.ni  being  very 
niisettled,  as  the  question  came  suddenly  upon  him  uiih- 
ont  any  previous  intimation  of  it,  and  befoc«he  bad  time 
08 


(190) 


218  Haywood's  reports. 

Api.l"94  _fo  form  itiipnn  ilpliheration  and  looking  into  autlioritics. 

^■^'^'''**' Tlirii  turning  to  tlii'jiirv,  lie.  said,  with  rcspert  to  the 
puiiii  under  (Miiisidtrafioii,  it  seiined  to  him,  that  whci-e 
tlicio  were  Hex  oral  |)i:rtner"s  in  trade,  and  one  of  tin'm 
died,  ihat  operated  a  dissdliiiion  nt  tlie  |>artnership.  As 
thi'j  <o!il(l  no  longer  trade  jnintl}  tngciliei-,  and  the  in- 
terest of  Ihe  do( leased  xested  in  exirninrs,  the  goods  and 
debt>.  innnediatrly  lieranie  \e.sled  in  thi^  siirvixors;  and 
a  right  lo  a  <hare  ol  what  remained  afiei'  ail  debt-<  due 
from  the  rompaii}  were  paid  anil  saiisfifd,  belonged  to 
theexerutors  of  the  deceas.d.  VMt  M-^uslin  «as  to  be 
considered  as  a  person  iiaviig  authority  to  act  by  virtue 
of  the  8])|:oioimeni  ol  the  nnnpany  ;  and  as  it  was  a  rule 
that  .1  p  'rter  t<i  art,  could  he  exercised  no  longer  than 
the  life  ol  him  that  gave  it — the  company  that  gave  the 
app'iintmeiit  being  dissol\i'd,  and  no  longer  existing,  all 
autiiot'itieh  «lerived  t'roiu  ihat  company  were  at  an  end — 
coriSi  qoently,  th<«t  the  authority  o{  M' Muslin  had  censed 
from  th''  limeof  ^V-JVuu^/t^on's  death,  and  he  h  td  no  pow- 
er to  oi.ki'  si<ie  ol' goods,  or  to  receive  and  gi^e  dischar- 
ges lor  debts  afteiw.<ids,  Linles.s  by  virtue  of  a  new  ap- 
pointoirnt  from  tlie  survivors.  In  whicli  case  he  would 
act  in  the  name  of  ihe  survivois,  and  not  as  he  tiad  for- 
merly done,  in  the  name  ot  (he  company.  If  an  author- 
ity be  committed  to  several  persons  jointly,  and  one  dies 
the  anfhority  catr  t«t  be  executed  ;  and  by  like  reason, 
if  several  persons  jointly  give  an  authority,  and  one  dies, 
the  authority  nni>t  be  revoked,  and  mo?e  especially  where 
the  death  ot'one  causes  an  alteration  of  the  ptopcity,  con- 
cerning which  the  authority  was  given — as  where  by 
deaOi  of  one,  his  share  goes  to  executors  or  heirs,  ^and 
the  like,  who  might  be  nn  •  'lling  to  l»e  bound  by  the  con- 
duct i>(  tlie  flgptit  formerly  appointed  ;  and  thertfirc  he 
tliuughl  the  p»ynient  w.is  n  it  a  good  one.  Tlie  jury 
however  ^i<,i  >d  for  tJie  Uefeodani. 

NoTB.'  A  (ir.uiT  is  tliin  d  scribed  ny  Molloy,  46S.  He  Is  a  servant 
created  by  i  murcliant's  letters,  and  lakes  a  liind  of  provision  called 
factorage:  he  is  bound  ''.  answer  the  loss  wliicti  happens  by  exceed- 
ing his- C(>niini'-*ion,  but  a  sinrijlc  si-''vaiit  or  apprentice  cm  only  in- 
eurhis  ms.^i.  i'-.  disuleasure.  Ertensive  commerce  renders  M  neces- 
s:iry  for  m» re  hunts  10  Intrust  the  sale  of  their  goods,  particulnlv  in 
foreign  ci>uM  lit*,  or  remote  pans  ol"  the  same  couiUr),  to  i.  lers 
vho  do  n  t  .cl  undT  their  immcJi  te  inspeciion  ;  ami  from  ilience 
some  rul.s  iiave  resu'tcd,  wliicri  milce  the  case  of  a  firtnr  very  dif- 
ferent fruni  iliat  of  a  simple  servant  or  clerk.  The  facior  rccciTea 
his  direetions  by  way  of  «  commission,  and  ih  bound  like  all  otbf 


Haywood's  keports.  21^- 

persons  authorized  to  ici,  by  (he  terms  "f  his  commission,  or  to  an-  Apr.  1795. 
swer  the  loss  himself  4  for  beiiip  :i(  a  dist:iiicf,  if  h'  was  not  thus  re-  v^»-v~^/ 
sponsible,  the  merchan'  wlmiiitrustihi-ii  iiiif't  h.- ijrif  .il,  rejudiCfd. 
Ifhe  was  erapowt-red  to  sell  gl  iiplv,  he  C'lnot  "scli  upon  crc-d  t.  1 
JVels.  M.  323.  pi.  2.  If  empowered  to  sell  upi.i  credii  at  tilt-  ri~k  of 
the  owner,  ihf  debts  will  he  *  loss  to  t^ie  owntr ;  but  if  he  is  t'l  sell 
upon  credit  it  his  nw  •■  ri^k,  the  liiss  occasioned  by  bad  debts  falls 
upon  himself.  2  Sir.  1182.  When  lie  selU  it  'us  own  rsic,  the  ac 
tion  against  the  purchaser  is  m.inlaiuabl  in  his  mn  name.  Bulltr 
IjO.  When  he  acts  in  his  own  name  beyond  sea,  heinfrauthnrizej  so 
to  do  by  his  commission,  he  may  maintain  a  suit  in  his  mvi  name, 
and  receive  payments,  becanse  he  in  the  visible  owner.  S'lller  130, 
156.  But  if  he  is  not  autlidiized  til  sell  in  his  own  name,  bu.  s.lls 
and  keeps  his  boots  in  the  name  of  the  principd,  there  I  apprehend 
all  payments  mus' be  made  and  received  in  ih-  name  of  the  princi- 
pal, and  all  actions  -.Iso,  Thus  there  is  a  decid-d  ditTfrcnre  bet  ween 
the  case  of  the  factor  who  sells  in  the  name  of  thtf  piincipal,  and  of 
him  who  sells  aocorlinjf  to  his  commission  in  his  own  name  In  tbe_  fjgj') 
one  case  the  action  must  be  commenced  in  the  n  ine  )f  the  principal,  ^ 
and  his  .leijt  may  be  set  off  against  it,  when  that  of  thi  fac  or's  can- 
iiot  ;  ami  ahhougli  in  both  cases  the  properly  of 'he  debts  remain  in 
the  principal,  un'ess  perhaps  when  the  factor  sells  not  only  in  his 
own  name,  but  al  his  own  risk  also  ;  and  upon  notice  given  to  the 
debtor  not  to  pay  th-  factnr,  it  will  inva'i  late  s>ich  p  ivmeiit  as  is  af- 
terwards made,  shoii'd  it  eventually  appear  that  at  the  ti  ne  of  pay- 
ment there  was  no  b  d  -nee  due  to  tlie  factor  from  t-lie  principal.  The 
law  gives  to  the  factor  for  the  lenefit  of  trad;,  a  11.  n  for  the  balance 
due  him  for  all  his  tiansar  ions,  as  w.  II  (or  his  former  servic  s  as 
those  Uiion  the  ,^  >ods  then  on  hand  or  laat  roiisi^'neu  !o  him;  and 
not  only  upon  the  goots  themselves,  but  upon  the  price  of  liie^nalso 
when  sold,  and  whilst  it  remains  in  the  hands  of  the  piirciias  r.  Cow. 
256.  And  of  course  he  must  have  a  rijjht  to  receive  until  he  has  re- 
ceived'o  the  am  lunt  of  the  balance  due  to  him.  And  in  c.se  of  a 
dispute  be'.ween  the  principal  and  factor,  pa-vments  to  the  one  or  to 
the  other  may  be  mide  to  he  at  the  jieiil  of  the  denior,  until  ii  shall 
be  settled  by  agreeme«l  between  ih;  m,  or  by  a  judicial  decision.  It 
being  a  rule  of  law,  that  no  man  shall  have  it  in  his  power  to  vary  the 
rights  of  third  persons,  or  to  prejudice  th  m  by  anv  act  of  Ins.  R. 
Bl  Rep.  84.  Cowp  255.  Thia  liglit  tiftiie  factor' to  receive,  how- 
eve;,  i^  .>y  vriue  of  his  lien,  which  the  I  w  gives  for  the  secuiity  of 
his  balance,  not  by  virtue  of  any  |)ro;Hrty  he  has  m  the  goods  ordebts. 
2  Mk  638  But  yet  when  thi  goods  are  sold  ',y  the  fictor  m  his 
own  name,  the  [lurchaser  cannot  set  oft"  a  deb'  due  from  'lie  princi- 
pal J  for  as  the  principal  cai.iiot  by  my  ac  of  his  deO  it  t  . :  lieu,  so 
neither  can  he  by  -ontracting  debts  >v  th  the  i;(irchas.rs  of  th  ■  goods. 

Coup.  256.  There  can  be  little  doubt  th  refore,  th.it  a  factoi  hiving 
once  g.iined  the  possession  of  the  go.  ds  of  liis  principal,  mn  letain 
them  till  his  b. dance  be  paid  ;  or  having  sold  'hem,  may  reci-ive  the 
debts  utitd  payment  of  tliat  balance, unle  sth"  purchaser  be  tstramed 
by  notice  trom  the  principal  fooi  p  lying  in.'  factor,  and  even  then 
the  factor  may  receive  th  m,  if  upon  the  dispute  between  tlie  princi- 
pal and  him  bemii  a  Ijnsted,  a  balance  ippeas  in  his  favoti-.  Could 
JMcAuslin  be  considered  in  the  pr«'en'  case  as  a  lacuir  entrusted  with 
the  puss.'"  sion  of  the  g'.ods  to  bi  sold  01  the  ben<  fit  of  the  coinp  iny, 
and  there  was  a  balance  due  to  him  fin  the  expemlitures  and  services, 

his  receipts  mi^ht  be  good  until  notice  to  the  debtors  not  topay  him. 

.and  such  receipts  might  be  binding  upon  the  surviving;  partners  :  for 


220  Haywood's  reports. 

Apr.l79S  they  recognized  him  by  the  r  answer  to  M' Naughton,  &  by  addressing; 

v^»"V^fc^  letters  to  l^im  as  their  aeeiit  ;  and  thoiigit  h  powi  r  to  sue  might  pos- 
sibly be  coumeitnundpft  hy  the  death  ofJU'JVauehtoti,  yot  not  his  power 
to  receive,  ihiit  bein;;  derived  f'rnm  iniothir  «oiirce.  the  lien  h-  had  on 
theprire  of"  the  g  ods  in  the  h:inls  of  the  debtor;  but  this  concUi- 
sion  can  onK  (;o  upon  the  supposition  of  his  having  been  the  com- 
pany's factor,  and  will  only  result  when  that  point,  and  the  other  of 
liis  bcinjj  entitled  !'•  a  balance,  shidl  be  established.  I'  does  not  ap- 
pear he  was  ever  designed  by  the  company  to  act  for  tliem  in  that 
capacity;  he  had  no  commission  or  auihurity  from  them  t'  that  ef- 
fect ;  lie  lived  under  the  immediate  and  daily  inspection  of  .WiVatij-A- 
ion  ;  his  books  wr re  kept  in  the  name  nf  the  company  This  bond  is 
made  payable  to  them  ;  had  any  di-ht  'leen  due  from  the  comp  -ny  to 
the  obl'gor,  ihatmiglit  have  heen  set  off  again'^t  ti'is  bond  ;  n.i'her 
is  if  prft  tided  th  .t  thrr-  is  a  balance  due  u>  l\1' Austin  from  the  com. 
pany  ;  he  seems  in  shnrl.to  have 'leon  notliinif  more  than  a  simple 
servant  or  cleric,  «  ho  in  case  of  a  lo^s  h«ppeniiig  to  the  master, 
could  not  have  been  made  liable  to  ii  himself;  (iir  not  pursuing  his 
coinniission,  \\f  was  a  person  from  whom  M' Nanghton  might  at  any 
time  have  legally  taken  |iossession  of  the  goods.  \.s  being  only  a  clerk 
appoii.tfd  to  assist  him  in  his  business.  He  had  not  in  the  lifetime 
.  »  of  JW'iVau^A/oH  any  legal  posstssim  of  tlie  ijoods,  exclusive  "f  and 
(192^  distinct  fri  m  him  ;  ht-  had  no  power  to  sell  but  by  and  under  his  im- 
mediate direction  and  as  his  ins'nimemi  ;  and  that  power  was  every 
momeit  liahle  to  be  discontinued  whenever  M' Naugliton  should  be 
disposed  to  discontinue  it  ;  the  approb:ition  giv  n  by  the  partners  i^ 
Kurope  to  his  appointment,  miglit  be  founded  par'ly  upon  the  con- 
sideration that  he  Was  rf-moveable  at  pleasure,  and  was  under  the  im- 
mediate control  of  their  ps.rtuer.  If  such  a  servant,  who  for  misinan- 
agcmeni  and  bringing  a  loss  upon  his  employer,  can  onl>  ini-ur  his 
displeasure,  shfuld  slill  continue  the  parinei'ship  dealing  here  after 
the  death  of  Ihf  appciinting  partntr,  it  might  he  producnve  of  ex- 
tremely ill  consequences.  A  factor  is  generally  a  man  of  somt-  pro- 
perty, or  security  is  iak>  n  from  lim  ;  he  is  to  account,  and  lOr  mis- 
manijement  his  fortune,  or  th.it  of  his  securities,  is  rr-ponsibit-.  The 
clerk  being  not  eplrustc il  so  hii,  is  no'  called  upon  for  aia  security  ; 
he  is  tiken  into  einploym-nt  and  cinlinued  in  it  upon  his  good  be- 
haviuir,  ami  is  under  the  coniinual  lon'rol  and  inspection  of  his  mas- 
ter— that  is  all  tlie  security  ihe  eni|)loyer  has  in  general.  Should 
such  111  one  aftir  the-  d.  alli  of  the  employer  be  permitted  to  sell  his 
.goods,  or  collect  his  debts,  he  might  nev<  r  be  able  to  m.ke  sntislac> 
lion  to  the  survivors.  If  there  is  no  authority  expr<-ssl>  in  point, 
that  ckcid-s  a  power  dehgated  to  one  by  several,  to  be  revoked  by 
the  death  of  one,  t  is  d'ducble  from  the  nature  of  this  ki"d  of  busi- 
ness, and  the  evil  consequences  to  tmde  that  would  ensue,  the  doc- 
trine of  allowmg  a  servant  or  rlerk  to  go  on  receiving  tie  nv.nii-s  of 
the  partnership  after  the  death  of  the  partner,  that  the  Ihw  cannot  be 
as  contended  for  in  suppnrt  of 'his  payment.  It  is  argued  to  be  a 
lianship  upon  the  Defendant  if  this  payment  was  net  allowed  to  be 
^ood.  Bui  there  is  none — the  bond  is  in  the  name  o<  M'Aauglilon 
&  Co.  Tilt  death  of  the  p  tlner  here  was  notorious.  I'  is  a  tin  g  in 
itsell  capable  of  notoriety,  and  if  a  man  will  pay  lo  the  clerk  aft  rthe 
death  of  the  merchanl,  lie  acts  in  his  own  wrong.  It  is  no  more 
than  the  common  case  of  deblors  pa\ing  into  the  wrong  hand — in 
which  case  he  is  always  compellable  to  pay  over  again  t'  the  right 
one.  This  must  be  clear,  that  whatever  authority  was  derived  from 
-  he  deceased;,  so  ar  hs  coiicernedihis  interest,  was  counteimanded  l>y 


Haywood's  nEPORTS.  221 

liis  death.  The  clerk  appoint  d  b)  him  carniot  receive  his  share  of  Apr  179o. 
the  Jebts,  so  as  to  ninbi.  himself  ch'jr(.'rable  for  thai  share  to  th.-  cue-  .^'V^/ 
cutors.  Thi  ir  Hein  ml  will  hi  au.iii  st  the  su  vivor--,  and  it  is  unrea- 
sons: le  ihat  the  apt-n'  c.innot  aff'i^ct  the  <--titf  of  th-  person  wh  •  ap. 
poim  d  h  m,  but  at  thi-  s.mt-  time  shall  aff.'Ct  that  of  t  .f  partners  in 
anot:;e'  pari  of  the- world  at  too  rest  a  distance  lo  g'lVi-  any  check 
to  his  Ciniiiict  ;  sii.l  ;ifier  ail  whi  n  perli:t|is  he  has  gieallv  injured 
them  by  mismanajjeinent,  thai  he  may  be  permittid  to  shelter  him- 
self b)  sayin);  he  acted  as  their  servaii',  and  is  not  ha  I--  to  m:ike 
them  luy  satisfaction.  .V  sum  receiveil  '>'  i  sii'Aivinpr  partner  after 
the  death  ot  tne  other,  is  receivrd  in  firo/njo Juie,  :ip  il  noi  „i  i  part- 
ner—becaisi-  ihe  partnership  is  dissolved  >•.■  <leaih  Law  Pari.  156, 
294.  2  Term.  476.  And  it  seems  to  fulhiw,  that  all  authority  to  dis- 
pose of  goods  and  receive  pay  mem  s,  c  ase  with  its  liss  hninn.  The 
survivors,  and  tliey  only,  become  aisweraole  to  the  ex^  cutors  of  the 
deceased;  and  if  they  sell  the  goods  at  an  undervalue,  or  otherwise 
waste  the  partnership  in  a  losing  speciilaiion  or  otherwise,  no  loss 
can  accrue  from  thence  to  the  exi  cuiorsor  lo  the  estate  of  the  deceased. 
If  this  decision  however  b,.- allowed  toascfrlain  what  the  law  is.  as 
the  decision  of  a  jury  seems  to  have  iloie  in  a  similar  case,  2  Sir.\l%2, 
then  the  law  n  w  is, that  where  there  are  S'ver^l  partiierf,  some  liere 
and  some  in  England,  and  thn  partner  here  appoints  an  agei'l  \ij  as- 
sist him  ill  selling  i;oi  da  und  receiving  debts,  and  then  dies,  the  sigent 
may  continue  umil  notice  to  the  contraray  be  given  to  tlu  oeiitois,  to 
receive  debt-  an  I  give  legal  disci. artfes  ;  and  the  dealli  of  the  partner 
heie  is  not  a  couitermand  of  his  authority. 

NoTB. — In  addition  to  the  cases  cited  by  the  reporter  to  show  the 
effect  "fn  "lUs'IutioM  of  :i  partii'Tsliip  by  the  death  of  on.'  partner, 
ste  Sirange  SJ  iithem  \  Lef,  3  East.  Hep  484.  S<-'  also  Dance  Cf 
etheis  ^ .  Girdltr  &  others  4  Jlos.  k  Pul.  Re/<  34.  Mdculj  £?  others  v. 
Bnun,  12  East.  Hep.  40j.     S.  C  2  Camp    JV.  P.  Sep.  422. 

\Vinslow  V.  Walker-. 

A  boat  is  drifted  away  fro-n  a  landing,  and  taken  up  by  a  stranger, 
who  sells  to  Defendant :  held,  that  the  stranger's  right  to  salvage,  is 
a  dim  and  U[  on  tht  Plaiiitifi'to  be  enfnrced  by  detention,  and  that 
the  right  is  not  transferable  to  a  purchaser  or  the  pr'ipeity. 

Tiover  tor  a  boat  ;  and  a  geiietal  vordict  for  tlie  (195) 
Plaintiff,  subject  to  the  fiiiiiiioii  of  the  coui-t  u|i'in  this 
special  rase,  1)12. :  Tin' boat  sued  for,  wa.s  the  property 
of  thi'  I'laitiiiff,  and  was  di  iftnl  iiwav  from  tlie  laiiiling 
at  Cmnpbcllton,  ^nd  Hoatrd  down  the  river  114  miles, 
to  a  part  of  die  liver  ab^ut  a  iriilc  wide,  and  w  ^is  tliere 
taken  up  by  a  straii.a;er  ;  and  iisjain  i^ot  idrift  and  went 
to  the  Mew-Inlet,  where  the  river  empties  into  the  sea» 
ten  miles  wide;  there  it  was  ai^tin  lakeii  up  by  a  stran* 
ger  v\ho  knew  not  the  owinr,  noi-  from  whence  the  boat 
had  come.  The  boat  was  qrea'ly  w  let  keil  ;i  ul  dai«ai;ed, 
and  in  that  condition  was  sold  to  lie  Detej'diinf,  ^t'o  ir- 
paircd  it:    npoti  which  tlni  Plnimiff  demanded,   and  tha 


222  HAY  wood's  kevoets. 

Apr.1795.  Dpfendant  refused  to  rleliver.     If  on  the  above  facts,  the 
^"^'^''"^^  law  is  fur  the  Plaint'ff,  the  Judgment  to  be  given  for  liim 
in  the  verdict ;  if  for  the  Defendant,  then  a  nonsuit  l»be 
cntend. 

And  now  upon  argument  it  was  insisted  for  the  Defen- 
dant, <hat  the  takernp  of  ihe  boat  ^^ho  suld  to  him.  had 
a  lien  on  it  for  his  salvaije.  to  which  he  was  enti'led.— > 
1  L.  Ray.  393,  the  rase  nf  Harford  and  Jones,  and  2  BL 
Rep.  1117.  were  citud. 

The  court  took  time  tn  advise,  and  the  next  day  gave 
jndginent  for  the  Plaintiff,  heing  of  opinion  that  th<'  right 
he  had  to  detain  the  boat  nntil  paid  f>ir  salvage,  was  in 
the  nat'ire  of  a  demand  upon  the  Plaimilf,  or  a  chose  in 
ac'ion,  lo  be  enforced  by  keening  possession  of  the  boat 
till  tiie  Plaintiff  should  satisfy  him,  whii  h  could  not  be 
transferred  with  the  boat  to  another;  and  being  founded 
on  the  possession,  when  he  parted  with  that,  he  lost  his 
lien,  and  could  then  only  recover  his  salvagt-  in  his  wd 
name  against  the  Plaintiff.  1  Mk.  -234.  235.  I  Burr. 
494.  BBacM.aTO  Dong.  105.  4  flurr.  2214.  And 
there  was  Judgment  for  the  Plaintiff. 

John  Ingram,  Assignee,  &c.  v.  John  Hall.  -^ 

A  bond  f'T  payment  of  money  withou*  a  subscribing  witness,  can 
only  be  d' claiecl  upon  as  a  sealed  iostrumt-nt  j  and  proof  of  the 
oblisrnr's  bund-writiiig  will  be  admitted  us  proof  ut  the  seal:  but 
pn.of  of  itie  .<eal  is  II  )t  evidenci- ot"  delivery,  which  is  to  be  in- 
ferred from  other  cicnmsta  ices. 

Debt,  and  non  est  factum  pleaded.  The  jury  being 
sworn,  this  special  case  was  made,  viz:  "The  Jurv  be- 
ing sworn  in  this  ca'^e,  a  piper  writing  w, is  produced  in 
the  w<n-ds  and  figures  t'olfnwin;;.  that  is  to  say, 

"Ten  d»ys  alti-r  tins  22  I  June,  1793,  I  [Momise  to  pay  '.o  William 
"  Cutlar,  <vr  order,  tm  vaiiif  received,  one  liuiidred  t>nd  sevcn'y-fire 
"  pouridK,  ton  sliilliiigs  currency.  Witness  my  hand  and  seal,  day 
"  and  d  !■  fimt  above  wrillen. 

£  ns  10.  JOHN  HAI.L,  (Seal  ") 

,       ,.         "On  iiie  bai  k  ofs.iid  paper  writing,  were  the  fullow- 
(194;     j„j,  endorsements,  viz  : 

"  Piy  th    within  t'    Geo.  ffouper,  o:  orAeT.  Wm.  CuTtAB." 

"  Pay  tlie  wiUiiu  to/  Jnffiam,  Ksq.  or  order.        G.  HoonR." 

"It  appc.\reil  on  insperiio'i  of  tliep'^per,  that  there  was 
not  a  subsrribi-"j:  wi'ness  to  it,  hut  thatthei-e  was  a  seal  ; 
ami  "le  Pliiiniifi's  counsel  olferid  h  witness  to  prove  the 
hand-writing  of  the  Defenduat,  to  support  the  action.  To 


Haywood's  keports.  223 

this,  the  Defendant's  counsel  objected,  as  insuflScient   iu  Apr.l795. 
law  (o  support  'he  acti'in.  >.i^~v-^^ 

"  The  court  tlierpfi)re  directed  the  witness  to  he  swun, 
and  a  veidn  t  t  >  lie  laken,  and  resi  rveil  the  quesliou  of 
law,  on  the  hIio^b  ibjection,  for  furllier  considei'alio'i. 

**  It  WHS  further  olijectc!  in  the  case,  tlial  an  action 
of  debt  cannot  he  maintained  on  the  writing  produced  j 
■wiiereon  ai-:o,  the  (■•i-ifi  took  tiinp  to  iidvise:  and  it  is  a- 
greed,  in  case  the  court  shall  be  of  opinion,  that,  on  either 
of  these  objections,  the  Plaintiff  ougiit  not  to  recover, 
then  a  nonsuit  shall  be  entered. 

"  But  if  the  court  should  be  nf  o|)inion,  that  both  these 
objections  are  invalid  in  (loiot  of  law,  then  judgment  to 
be  entered  for  the  I'laintiff." 

The  witness  not  only  proved  the  name  subscribed,  but 
also  the  word  seal,  wriften  in  the  circumference  of  the 
seal  and  scratciiexl  with  a  pen,  to  be  in  the  liand-writing 
of  the  Defendant. 

At  October  term,  1795,  the  court  gave  tlteir  opinion 
as  follov^s : 

Judge  Haywood — Before  we  proceed  to  the  iniracdi- 
atc  investigation  of  the  first  question — Whether,  in  the 
case  of  a  sealed  insirunient,  onatti'sted  by  any  subscri- 
bing witness,  the  hand-writing  of  the  paf'y  may  be  ad- 
mitli'd  in  evidence;  it  may  be  [iroper  to  tak-  a  view  of 
the  orii^iii  of  deeds,  in  our  law  ;  and  of  the  \a-  io,is  chan- 
ges and  alterations  the  law  has  nndergone,  wiJ-  e^'Spect 
to  that  species  of  instruments,  in  order  to  bi  uccommoda- 
ted  to  the  different  circninstances,  which  diffei  eni  peri- 
ods of  time  have  produced.  U'his  may  have  a  stionger 
tendency  ti>  place  tlie  present  question  in  a  true  light, 
than  pcrhips  an>  method  of  treating  the  subject  that 
could  be   devised. 

Let  us  consider,  tlierefore,  1st,  tlie  origin  of  reducing 
cenfracts  to  writing  ,-— Silly,  th.-  origin  of  sealing,  with 
the  uses  that  have  been  inad«  of  it  at  different  periods; — 
3dly,  the  origin  of  delivery. 

We  will  then  consider  the  only  circumstance  essential     (lar' 
to  the  cotistitution  of  a  deed  at  this  day  :  and  lastly,  from    ^     ^^ 
all  these  premises,  we  will  draw  conclusions  applicable  to 
the  point  now  in  cmtro>ersy. 

1.  All  writers  agree  that  the  northern  nations  of  En- 
,rope,  who  spread  themselves  over  the  soulhern  and  wes- 
tern parts  of  it,  were  an  illiterate  people,  who  despised 


224  llAYWOOU-S    UKl'ORTS. 

Apr  1795.  all  arts  but  tliose  of  war.     Tlie  Saxons  who  founded  the 
*"^''"'''^**^  hcpiatchy  in  England,  and  iirtfiNVards  the  Eiiglisli  tno- 
nairliy,  were  part  of  thuse  pi^ojili- — (hrj  liwd.  in  a;cnei-al, 
ni)  kiiowlcdt^e  of  li-itcrs — tiicir  laws  and  customs,  Uieir 
lei^Hl  ceremonies,  were  presi  rved    and  Iraiismittvd    to 
others  and  to  postrrity  by  tradition  only.     To  keeji  np  a 
military  spirit,   and  to  lia^e  u  bund  t>f  warriors   always 
ready  at  eominaud.  it  was  the  nnivcrsal  practice  of  the 
conquering  leaders  of  these  nations  to  divide  the  conqner- 
ed  ccnintiy  into  alloinn  nts,  whicli  vsere  parrelhd  out  to 
thcii-  Ibllovsirs: — tiist.  at  the  will  of  the  lor<l  or  lea'ler; 
ne.\i,  for  the-  lietier  encourai^cm-nt  nf  agriculture,  (or  life; 
and,  last  of  all,  for  ever  or  in  fee.     Abnnt  tlie  time  when 
it  be.^an  to  i»e  usual  to  make  these  i^ranls  for   life,   tiic 
Christian  religion,  uniiei-  tlie  aus|ii(e-  of  ine  P.ipal  see. 
was  propagated  in  England  by  St.  Jlugitstine  i\\u\  others, 
and   was  smin  ad<i|)ied  and  reieiti-d  a.s  ihc  naiKinal  reli- 
gion.    Its  priests  were  men  of  some  learning — they  here, 
as  in  all  oilier  placi's  wliere  they  have  be.n  received,  be- 
gan to  grasp  at   temporal  advantages — they    inculcated 
upon   the  minds  of  the  people,    that  it  was  an  act  ^  the 
most  meritorious  jiieiy  to  proude  foijlic  maintenance  of 
the  minister',  of  God.     This  diutiine  had  its  efTer  t,  and 
donafioas  of  allotments  of  land    began  to  be  made  to  the 
Churcii,  \lso  foi-  lif.'  :    but  tins  life  w   s  supposed  to   be 
peipetnal.  as  tlie  Cliurrh  never  died.      The   ddiiaiions  of 
these  alhumi-nth,  fur  want  of  -i  belier  nntlind  of  perpetu- 
ating ilie  transaction  among  tin-  laity,  wlio  knew  noiiiing 
of  letters,  had  always  bi-en  madi' by  livery  of  seisin,  done 
in  tlie  most  solemn  form,  to  impress  it  on  the  mind,  before 
a  number  of  tlic  co  vassals  or  tenants  of  'he  lord  ;    who 
in  case  ol' a  dispute,  were  assemblc'l  in  tlie  lord's  court, 
and  detei'iniiied  chiefly  by  the  reinenilii-ance  which   iliese 
impressions    li,id   made  betweioi  i;,.-  parlies.     Thi-   pre- 
sumption was,  :lia'  if  some  who  were  present,  from  lengtli 
of  time,  had  foigoiUMi  some  of  the  circnmHtaincs  or  con- 
ditions annexed  to  the  donation,  otlii-i>  .if  them  iniglit  re- 
member tlii-in,  and  so.  by  the  iiniied  n  inembrance  ol  all 
togellier.   niiglil,  in  ihe  end,    ascertain   llie  ti-ue  state  of 
(196)    facts.     This,  by  tlie  way,  I  su-pert  Was  the  origin  of  ju- 
ries, and  of  Ihe  unanimity  required  in  ilieir  decision. — 
Each  Juror  conii-ibiiicd  the  circum->l,ince.s  lod.cd  in  his 
mind  to  the  general  stock  of  iidorma'iini   wliicli  formed 
the  verdict :  and  by  conference  willi  liis  fellows,  brought 


# 


Haywood's  ueports.  225 

fo  their  recwllection  the  cii-cunistances  wliirli  he  remem- Apr.i795. 
bered.  and  tlie  others,  oi-  some  of  (liom,  had  forgotten,  tin-  ''-^'^''^^if^ 
til  at  length  ihe  whole  transaction  was  renovated  in  the 
minds  nf  all.  This  mode  of  conveyance  answeied  the 
pur|)08e  sufficiently,  when  donations  wore  for  the  life  of 
an  individual  only;  for  it  would  scldmn  happen  that  he 
would  survive  all  the  otiier  pares  of  ihc  ^Md'^  conrt,  who 
wei'e  present  at  the  investituic.  But  when  donations 
weie  made  for  life  to  a  churchman,  for  the  henefii  of  his 
Church,  and  it  wanareceixed  niaxim  ihal  the  Churdi  ne- 
ver died,  this  melhod  no  longrr  aHSvvcred  the  pu!po**e  as 
to  them  ;  for  the  donation  might  have  continuance,  and 
the  conditions  upon  which  it  was  made,  inigiit  come  in 
question,  after  every  one  of  the  ^ares  present  at  the  inves- 
titure were  no  more,  and  then  the  iillotnient  might  be  ii- 
able  to  he  resumed  by  the  lord  ;  ail  lands  included  in  his 
territory  or  manor,  not  granted  to  one  of  iiis  vassals,  be- 
longing to  him  ;  and,  after  the  death  of  all  the  pares,  no 
evidence  remained  of  the  investiture,  much  h-ss  of  the  con- 
ditions annexid  ihereti.  It  became  nece  saiy,  therefore, 
when  the  Church  was  concerned,  to  have  some  other 
mode  of  perpctuaiii^;  the  Transu(  titni  liian  mere  livery  of 
seisin  ;  and  the  Cler.ny  being  the  learned  part  of  the  com- 
munity, devised  the  mode  of  reducing  tlie  terms  of  the  do- 
nation to  writing,  iSuUiran  82.  And  «hen  Ihe  l<nd,  on 
account  of  sickness,  the  distance  nl  the  land  from  his 
place  of  residiiice,  his  being  employed  in  some  other  bu- 
siness, or  some  otiier  cause,  could  not  go  upon  the  land 
to  make  livery,  then  ihe  writing  containing  tlie  terms  of 
the  donation  was  solemnly  delivered,  before  the  peers  of 
the  court  also,  in  lieu  of  the  land;  lo  the  end  that,  being 
delivered  before  them  in  so  solemn  a  luiin,  they  niigiitbe 
witnesses  of  the  investiture  of  the  land  mentiinied  tiiere- 
in,  and  might  be  able  upon  trial  to  ascertain  the  identity 
of  the  |)a|)er  deli\ered  should  the  dispute  happen  in  their 
time.  This  was  not  indeed,  a  c+nnphie  investiture  of  it- 
self, it  was  termed  the  improper  iuMstiiui-e,  and  bound 
the  lord  to  make  a  more  formal  liveiy  of  seisin  of  the 
land  contained  in  the  deed  at  a  lutuie  da*,  and  was  a  suf- 
ficient security  to  the  donee  in  tlie  interim.  Bxpeiience 
evincfd  the  safety  and  certainty  tiitri-  was  in  reducing  ^.^-^ 
these  landed  contracts  into  writing  in  the  case  of  church-  t^^' > 
men,  and  tlie  laity,  wisliing  to  be  as  secure  ^  possible 
in  their  possessions,  adopted  by  digrees  the  same  me- 
thod :  whi';!i  afterwards,  when  these  allotments  woteav- 
!?9 


S^d  MAYWOOD's   ItEPORTS. 

Apr  1794.  teiiiled  to  (lie  lieirs  of  the  iwsscssor,  became  equally  i)e- 
'^'^"""'^-^  ce^sai  V  for  tin-  laitv  as  tlie  Cleri^y,  and  fiom  iImI  time, 
deeds  of  (eoft'rneiit,  lo  Hccoinjiaiiy  ilie  livery  of  seisiti,  be- 
came geiH  rally  used,  lli  >ii!?li  tlie  livery  of  seisin,  was 
good  xvithoiit  (hem  ;  and  these  (■<nili'ar-ts  in  wrilini;;,  be- 
ins;  found  so  advantii,c;eoiis  in  |ici'|ietuatiiig  ilic  terms  and 
conditions  of  a  landed  donation,  were,  by  degrees,  con- 
verted to  llie  purpose  of  juerpetuatiui;  other  rontracts, 
that  concerned  only  personal  estate,  whicli  formerly,  a- 
nnongst  the  unli-itered  Saxons,  were  completed  by  sha- 
king ot  hands  only.  2  Bl.  Com.  448. 

II.  The  preserving  the  remembrance  of  a  landed  con- 
tract, having  thus  bi  roine  general  in  ilie  times  of  the 
Saxoo  govenimem  in  England,  attd  the  general  illitera- 
turc  of  (lie  laity  ol  all  ranks  prevailing  universally,  it 
was  rustoinary  for  them  to  put  some  mark,  usually  the 
sijiii  of  ihi-  cross,  to  identity,  as  well  as  they  could,  the 
-wriiiiig  t'ny  had  agreed  to  ;  and  this  was  done  coram 
paribus,  who.  upon  tin'  trial,  might  reiuembei-  it,  or  be  a-^ 
ble  to  ilisiiiiifuish  it  from  some  circumstance  attending 
the  mnkiiiK  the  tb  rd  or  the  mark  itself.  But  upftn  the 
"Noimaii  conquest,  it  became  the  poli.y  of  the  conqueror 
and  his  sons  to  abolish  (he  Saxon  customs,  and  for  this 
purpr)se  to  diaw  as  many  causes  as  (lossible  to  be  deter- 
mined in  tlie  curia  regi&,  where  the  judges  were  Normans. 
Sulliv.  339.  343,  369.  374,  where  the  pares  of  the  neigh- 
borhood were  frequently  not  called  upon  (o  decide  be- 
tween the  litigants,  as  tiiey  unil'ormly  were  in  the  courts 
of  Saxon  institudon,  the  county  court,  hundred  court,  &c. 
About  this  period  the  Bishop  was  separated  from  the  She- 
liff  in  his  county  court  ;  and  it  was  established  as  a  rule, 
that  the  county  court  had  not  cognizance  of  any  dt-tnanil 
of  more  than  forty  shillings  value  ;  the  consequence  of 
which  must  have  been,  that  albcauses  were  carried  into 
curia  regis.;  and  it  must  frequentlj'  have  happened  also, 
that  the  marks  affixed  to  the  deeds,  foi-  want  of  Ihv pares, 
were  incapable  of  any  distinction,  and  of  course,  any 
jiroof  of  the  identity  of  the  insliiimciit.  I'his  p'lnlnced 
an  inconvenience.  Tlie  greatest  men  among  the  laity 
could  not  wi'ite  their  names,  so  as  to  give  a  proof  ol 
identity  that  way,  and  being  under- the  necessity  ol  pro- 
(l98)  aiding  some  more  certain  crit<-i'ion  of  identity,  than  that 
of  the  sign  of  the  cross,  they  introduced  lor  iIk-  first  lime 
into  England,  the  practice  of  impressing  liieir  writing- 


KAY  wood's   BEFORTS.  2'2'? 

wHh  a  seal.  Snlliv.  374.  Terms  de  leif,  verba  Fait. —  Apr.  1795. 
Gilb.  law  of  Evid.  17,  18,  zO,  78.  The  schI  'xliihited  ^■^'^'''"*^ 
the  eriilil(>iii  \\lii<li  its  owiior  IihiI  iiffixed  to  lii-.  purson, 
wlieii  rovored  in  the  fifhl  with  his  rnat  of  mvitl  ;  and 
which  heiiija'  pitirti-iiye'l  iip^iti  •nt.ne  conspicuous  pai't  of 
his  dress,  scvkI  tn  design  >ti'  liis  peis  >n.  I'liisc  sym- 
bols CHino  to  bi'  '  ei-y  much  in  use  .if  tiic  linie  "f  ihc  cru- 
sades to  the  Holy  Laud,  in  the  titne  of  Richard  I.  .md  af- 
ter, and  wei'f  continued  hy  the  kiii.a;hts  i-nl  othi'c  pm-- 
soiis.  who  then  used  thmi)  hy  way  of  distinction  in  Micir 
families  afte  •  their  retin  n  home.  The  seal,  therefore,  of 
any  distinguished  person,  could  immediately  ho  known 
by  inspccliini  only.  This  rnrtiiod  nf  snalin;!;,  however, 
was  not  introduced  all  at  onci-,  but  by  di'a;rees.     It  was  , 

at  first  only  used  by  such  as  were  eniitlnd  to  those  dis. 
tinafuishinj;  symbols — by  the  nohijity  and  s!;entry  only. 
For  Lxicie,  Chief  Justice  of  Henrij  II.  reprimanded  a  com- 
inon  man,  who  had  made  use  of  a  seal,  sayiii«:.  that  be- 
longed to  the  nobility  only.  Terms  de  ley,  iibi  siipni,  and 
several  otlicr  books.  But  it  is  to  be  remarkeii,  that  a~ 
bout  tiiiis  period,  and  f<n'  some  time  bcf  ire.  the  common 
people  had  but  little  use  for  seals,  as  tliey  could  have  bfit 
few  contracts.  Tiic  conquest  had  iiiti-odurgd  the  tna.v- 
im  of  non  alienation  without  the  consent  of  t!ir  lord.  A 
great  number  of  them  wi're  villains,  who  could  not  ac- 
quire property  at  all  but  for  their  masters  ;  and  as  to  the 
feudal  tenants,  they  were  continually  haiassed  by  attend- 
ing their  lords  in  war.  Commerce  liad  not  yet  hejifan  to 
flourish  and  increase  the  personal  property  of  the  nation. 
The  old  law  authors  of  those  times  have  scarcely  a  chap- 
ter upon  personal  property.  2  BL  Com,  385.  And  even 
when  the  doctrine  of  non  alienation  began  to  wear  away 
imperceptibly,  the  common  people,  being  not  entitled  to 
any  family  distinction,  iiad  no  seals,  ancl  were  obliged  to 
contract /IS  formerly  was  used  before  the  introduction  of 
sealing.  The  uncertainty  of  such  a  method  begat,  in 
combination  with  other  circumstances  peculiar  to  those 
times,  the  practice  of  conveying  by  fine ;  where  the  whole 
transaction,  with  the  precise  terms  of  the  cunveyance, 
were  recorded  in  one  i>f  the  King's  coitr's.  and  obviated 
completely  any  future  controversy  respecting  'In-  execu- 
tion of  a  deed.  At  length,  however,  the  eyes  of  the  na- 
tion began  to  be  opened  to  their  true  interest ;  tirade  floU' 
rished;  agriculture  was  encouraged  ,•  personal  property 


328  HAYW00D*8   REPORTS. 

Apr.1795.  increased  ;  lands,  or  part  of  flietn  at  leasf,  bep:an  to  be 
^•'""'"^^  freely  alienated;  thry  >  were  made  liHble  to  aiisv\er  the 
(199)  debts  of  the  merrhant,  and  as  t"  part  of  tliem,  tlie  debts 
of  any  oilier  proprietor.  Contracts,  botli  for  real  and 
personal  property,  berame  frequent  amona;  all  ranks  of 
men.  The  necessity  of  antlientirating  their  written  con- 
tracts became  nrijfut  ;  tliey  of  conr^^e  used  the  best  jnndd 
then  known.  Tley  broke  tlironj°;li  the  privileges  of  the 
nobility  and  jycntry,  and  made  seals  wiih  such  impressU 
ons  as  each  man's  fancy  suggested  to  be  the  jnoperest 
mark  for  distinguishing  his  contracts.  By  the  time  of 
Edward  HI.  seals  were  in  general  and  common  use.— « 
Terms  de  kij,  ubi  supra.  Cunningham,  Title  deeds,  who 
cites  Perkins,  229,  and  sequentia.  And  it  became  a  rule 
of  law  that  a  deed  could  not  be  constituted  vsithout  a 
seal ;  and  the  method  of  signing  with  the  sign  of  the  cross, 
or  some  '>ther  mark,  had  gone  into  total  disuse.  Thus  it 
seems  clear,  that  the  seal  was  originally  introduced  in 
.  the  place  of  signing,  as  an  evidence  of  the  identity  of  the 
writing  which  contained  the  party's  agreement,  and  af- 
forded a  full  proof  thereof  by  the  inspection  of  its  imprcs- 
•''  sion  only  ;  and  signing  by  the  party  was  held  unnecessa- 
ry and  useless.  In  reality  it  could  contribute  but  little 
to  the  (iroof  of  the  writing,  as  long  as  the  illiteralcness 
of  the  people  continued  ;  which  was  until  sometime  af- 
terthe  introduction  of  printing  into  England,  in  the  time 
of  Edward  IV.  insomuch  that  as  late  as  the  lime  of  Hen- 
ry VII.  the  being  able  to  read  was  held  to  be  a  legal  proof 
of  a  man  being  a  Clergyman,  or  clerk  in  orders,  4  Bl. 
Com.  360. 

This  universal  use  of  seals,  however,  produced  its  in- 
convenience, when  every  man  who  made  a  contract  was 
obliged  to  use  a  seal  to  authenticate  it.  Many  of  those 
seals  were  not  known  to  the  jurors,  and  they  could  not 
determine  in  many  instances,  on  the  authenticity  of  the 
instrnmeiit  upon  the  inspection  of  the  seal  only.  They 
were  under  a  necessity  therefore,  to  call  upon  those  who 
were  supposed  to  know  the  seal  whi<  h  the  party  used,  to 
say  whether  that  was  the  impression  of  his  seal  or  not ; 
and  upon  this  evidence  they  decided,  and  sometimes  up- 
on the  (omparison  of  the  seal  with  the  impressions  upon 
other  instruments  "hich  were  pro\ed  to  be  sealed  by  the 
paity.  But  still,  in  contemplatirtn  of  law,  these  seals 
were  beld  to  contain  an  intrinsic  evidence  in  tberaselvea 


HAYWOOD'S    REPORTS. 


229 


of  the  contract  to  wliirli  tliey  were  affixed ;  and  therefore,  Api  l79o 
as  well  as  for  the  purpose  of  lieins^  n  iiipaicd,  flie  rule  of  -^^^*« 
law  was,  tjr.tt  iliey  sliniild  be  carried  out  by  the  Jury.— 
6iU).  Law  of  Evid.  20.  But  with  respect  to  those  seals 
winch  still  retained  sufficient  distinction  in  themselves  as  (200) 
the  p;reat  seal,  the  seals  of  the  courts  of  justice,  the  seals 
of  corpiirations,  a?ul  some  others,  no  proof  as  to  them 
was  recjuired  <)r  perhaps  was  allowed.  They  still  con- 
Tmued  to  answer  the  f!;enuine  purposes  of  seals  iit  their 
first  introduction,  and  were  full  evidence  of  iliemselvcs. 
The  peo|)le  began  at  lenijtii,  to  forget  tiie  ori.s;inal  use  of 
(his  institution,  and  to  seal  with  any  impression  they 
could  j°;et ;  and  the  law,  rather  tlum  invalidate  the  whole 
trairsiictioM.  left  it  to  the  jury  to  decide  whether  that  was 
the  seal  of  ihi-  party  or  not.  In  thig  country  the  jieoplc 
ha\e  depaited  siiil  furtiicr  from  the  true  use  of  seals,  by 
not  m;ikin.ii;  any  impression  at  all,  scrat  hing  aoniefiritig 
like  a  seal  upon  ihe  margin  of  the  paper,  and  muking 
that  pass  for  «  seal.  To  the  fit  st  of  these  abuses  the  law 
has  conformed,  and  will  now  deem  the  sealing  tobesufti- 
cient,  if  found  by  the  jury  to  be  t'ie  seal  of  the  party. — 
For  fear  of  ilestroying  some  rontracts  improperly  made 
at  first,  it  lias  r  elaxi  d  from  strict  propriety,  and  the  prac-  , 
tice  of  sealing  with  any  imju'C'-sion  lias  bocome  general; 
and  is  now  from  tn^cessity,  allowed  to  he  good  in  every 
instance.  Cunn.  verba  Deeds,  cites  Perkins,  129,  34.^ — 
Cro.  Car.  149.  Glib.  Law  of  Evid.  20,  but  still  thecni- 
templatiiitt  of  law  is  in  conformity  to  the  anrien'  use  of 
seals.  They  are  deemed  the  signs  of  authenticity,  are 
supposed  to  liave  an  intrinsic  e\  idence  in  thrmselvis,  and 
for  that  reason  are  cai  ried  out  by  the  jury.  Gilb.  Laiv 
of  Evid.  17,  20,  cites  Sid.  145,  Hard.Ds,  PU'icd.  Com. 
411,  and  Sir  Edivard  Coke,  sp<-aking  nf  deeds,  ;K/^e  6  h, 
says,  "also  Ihe  deed  may  receive  credit  per  collalionem 
sigitlorum,  script%ircE,Sfc."  and  Baron  Gilbert,  in  his  note 
upon  2  Bac.  M  494,  says,  "the  seal  appearing-,  it  must 
be  presumed  to  he  put  there  by  the  parlies  to  the  deed  ;" 
and  cites  Leo.  25,  Uxven,  23,  and  Bend.  1. 

In  tlie  reign  of  Ilcnrij  Vll.  and  Henry  VIII  learning, 
and  the  art  of  writing,  had  becom.^  miicli  less  general 
than  in  former  times,  and  i»y  this  lime  also  seals  had  be- 
come much  less  a  mark  of  distinction,  and  pioof  of  tlie 
indi\idual  contract  made  by  the  parties,  than  in  former 
reigns  :  but  (he  v\i\t,  that  the  deeil  ninst  beantlienticated 


*^. 


230  haywood's  reports. 

Apr. 1795.  (,y  tiij.  party's  seal,  lind  passed  into  settled  law.  In  or« 
^-^""'^^^  (Icr,  tlxMC'forc.  to  sjivo.  a  siiir'  proof  uf  the  sral  which  jiro- 
ved  the  wi'iiiiijs;  that  rodiaitioil  the  aiiifcment  i)f  tJic  par- 
ty, subsrrihiiie:  his  name  ;it  thf  fo' it  of  the  instriiniciit, 
iitimctlialely  after-  ils  runcliisidii  and  prefis'-d  lo  the  seal, 
in  the  same  place  ant)  in  111"-  (lai'ty's  own  handwritin.s;,  be- 
(SOl)  e;an  to  be  used.  JVoij.  163.  And  iiltlioii.!!;h  it  was  lield 
in  ronlorrnity  to  th<'  i  nle  then  estahlisheii.  and  which  has 
ever  .sin'e  cnniiiiiied,  that  stirh  a  sit;naturr  was  not  ne- 
cessary to  th«'  essence  of  the  deed  ;  yet  wiiei-e  the  jtiry 
conid  not  decid  •  with  rcsjiect  to  thi'  deed,  upnti  inspecti- 
on of  the  seal  neiely,  ni>r  be  sati'-fied  by  a  witness  who 
knev^  the  impression,  nor  by  a  comparison  of  the  seal  in 
dispute,  wilh  other  se^ls  made  use  of  liy  the  same  jtarty, 
they  were  allowed  to  f  nin  tiieir  jndgrmenf  npon  (he  hand- 
writiti!?  of  tlie  party  prrfixfd  to  the  seiil  ;  and  that  was 
{he  seripturcB  intendetl  by  Sir  Edward  Cohc,  in  the  pass- 
age above  cited,  where  speakincj  of  the  doctrine  of  deeds 
and  of  piesiimption,  he  say-,  »•  also  the  deed  may  receive 
credit,  per  collatvmem  sigUlorum.  scripliirw.  ^'c-  et  super 
fidem  carturum  :  mortuis  testibus  erit  a<l  pntriam,  de  ne- 
cessitale,  curreiidnm."  Co.  Litf.  6  6.  It  may  be  here 
supposed  he  meant  the  haTid«ritinqt>f  the  witnesses;  but 
Ibis  is  not  his  meaninsf,  for  he  says  expressly,  in  the  ve- 
ry next  pHgr,  that  the  clause  of /i/js  testibus  is  not  es- 
sential lo  the  deed  ;  and  in  page  G  a,  be  says,  "very  ne- 
cessary it  is."  by  which  he  me;ins  advisable  or  prudent, 
"tliat  \vitru"-ses  should  hi-  nod  ■ewritten  or  endoi'sed  for 
the  better  sirfins^thcning  of  deeils,"  (  not  that  it  is  abso- 
lutely necessary  to  make  them  valid)  "aiidtlieir  names, 
if  they  can  write,  written  with  their  own  hands,"  not 
that  they  must  nccessar  ily  bf  subscribed  with  their  own 
hands.  Even  at  this  day,  tliere  were  many  witnesses 
who  could  not  write  their  own  names,  and  tjieir  names 
were  to  be  endorsed  ;  and  when  these  witnesses,  namely, 
witnesses  who  had  not  subscribed  (heir  names  in  their 
own  haiidwritint>;,  could  not  he  found  or  were  dead,  then 
the  deed  was  to  recei\e  credit  per  collalioncm  sigillorum 
et  scnplurit.  coupled  toajether.  Tiiis  pntves  the  imsition, 
tliat  the  signature  of  the  |)arty  was  used  as  a  proof  of  the 
seal.  If  it  was  not  evidence  of  the  seal,  then  it  was  in 
vai'i  to  pidve  the  handwriting  at  all  :  for  that  of  itself 
was  totally  unessential  to  (he  deed,  and  mailc  no  part  of 
its  essence,  as  tliu  same  author  had  said  in  the  page  last 


1 


uaywood's  reports.  231 

preceding,  ami  as  is  held  tit  bn  law  at  this  day.  Salk.  4fl2,  Apr.i79J. 
pi.  2.  And,  tliMt  IliK  prool'of  the  sigiiatiirf  of  the  party,  >-^~*'^'*' 
whfii  admitted,  is  used  as  a  proof  of  ilie  seal,  is  avowed 
ill  terms  Hlnmst  iiiicqiiivocal,  by  Huron  Gilbert,  in  liis 
la7V  of  evidence,  99,  103,  where  he  says,  "fur  ihoiij^h  tiio 
deed  hi'  pnidiiced  under  iiand  and  seal,  and  ilie  band  of 
the  part)  tliaf  exerntes  the  deed  be  j)riueil,  yet  this  is  not 
full  proof  of  the  deed,  for  the  deiixeiy  is  iieccssury  to  the 
esseiife."  Does  not  this  nmuife-tly  iinjiiy,  that  the  proof 
of  the  haiiilwiitiiii;  proves  every  thiiijs;,  vvliicli  is  ol'the  es-  f202) 
seiice  of  the  deed,  but  delivery  only  :  and  of  course,  that 
it  piovcs  the  seal?  With  res[iect  loan  attesteii  sealed 
instrunienl,  it  is  the  roininon  practice  in  the  English 
ccnirts,  where  the  witnesses  are  not  to  he  found,  to  prove 
botli  the  liaiidwiiiina;  of  the  witnesses  and  iff  (he  party. 
Bl.  llcj).  5o'2,  Forbes,  executors,  ^'c-  v.  fVale,  sucii  (iroof 
adiniiied  before  Lord  Mansfield,  to  be  given.  2  Brtrwv^s 
Ch.  Rep.  -tSG,  538.  The  sanie  proof  admitt  'd  before  the 
Lord  Chancellor,  and  stated  by  the  counsel  opposed  to  the 
fact  it  meant  to  establisii,  to  be  e>.'id'  iice  in  the  common 
form.  Tlfe  same  pi'oof  must  also  have  been  iidtnitted  in 
the  case  of  Gould  and  Junes,  lepinted  in  BL  Hep.  384,  as 
may  he  seen  by  haling  r.'coiirse  to  the  case  itself;  and 
the  same  kind  of  proof  was  dearly  admitted  in  the  case 
of  Co^lUun  and  Ifilliamsou,  iej)orted  in  1  Doug.  93  But 
why  in  all  those  rases  is  tlie  proof  of  the  party's  signa- 
ture held  neci'ssury,  if  proof  of  the  witnesses'  handwri- 
ting proves  both  sealing  and  delivery,  and  tmt  the  delive- 
ry only  ?  From  the  reason  of  (he  thing  itself,  and  nior9 
especially  fi<Mn  the  great  weight  of  these  eombined  au- 
thorities, it  seems  to  be  a  conclusion  fairly  warranted, 
that  at  this  day,  whatever  it  might  have  been  formerly, 
the  seal  is  in  somi-  instances  proved  l)y  the  signature  of 
the  l)arty.  This  holds  in  all  'hose  instance.-;  where  the 
signiiiurc  (dthe  i)arty  is  admitted  to  be  proved:  .wid  that, 
the  si-;il  always  since  its  tust  introduction  has  been  used 
as  an  eviiieni  e  of  (he  writing,  in  which  liie  party  lias  de- 
posited his  agreements 

111.  With  respect  to  the  delivery,  I  iiavc  no  more  to 
add  to  what  lias  been  already  said  relative  to  its  coining 
into  use  instead  of  the  livery  of  seisin,  and  being,  like 
that,  made  in  scd.  mn  form  coram  paribus,  to  (he  end  it 
might  make  the  deeper  impression  in  their  minds,  than 
Iiat  this  solemn  delivery  of  the  deed  rornin  paribn.t  being 


232  HAYWOOD'S    REPORTiB. 

Apr  1795.  found  to  be  well  calculated  t(»  make  the  desired  impresa- 
^-^~''''*>-'  ion  in  the  case  of  Lindcd  contracts  ;  and  also,  from  the 
same  solemnity,  to  excite  in  the  i)arty  a  reflpction  upon 
the  stibji'Ct  he  was  cnijaged  in,  it  was  continued  in  other 
contracts;  and,  like  Ihe  seal,  was  considered  an  essenti- 
al ingredient  to  tlie  constitnlion  of  the  deed.  Here,  it 
maj  not  be  improper  to  remark  ujion  the  excellence  of 
this  institution  vvhen  once  established,  though  introduced 
gradually  and  for  other  pniposes,  in  pn-venting  all  man- 
ner of  surprize  uj)0n  the  pai'ty.  It  was  first  to  be  writ- 
ten; tliis  necessarily  employed  some  time;  he  had  the  in- 
(^203;  tecval  for  reflection  ;  it  was  to  he  read  over  to  him  if  he 
requested  it :  then  the  wax  was  to  be  preiiared  and  melt- 
ed ;  next  a  seal  to  he  procured  ;  then  an  impression  to 
be  made;  thus  gradually  approaching  to  Ihe  final  act, 
still  giving  time  for  reflection,  and  exciting  by  each  new 
act  still  greater  apprehensions  ;  and  last  of  all,  lest  the 
former  precautions  might  not  be  suflicient  to  put  him  up- 
on reflection,  he  was  called  to  go  before  the  pares  of  the 
neighborhood,  and  make  a  solemn  delivery  of  the  instru- 
ment. After  all  these  ceremonies  were  complied  with,  it 
was  scan  ely  possible  to  believe,  that  the  party  was  cir- 
cumvented by  fraud,  or  surprised  .nto  what  he  had  dune. 
After  the  pares  were  disused,  and  the  autliority  of  the 
county  and  iiundri-d  cour>s  diniinished,  I  a|)pr(-l)eud  a  de- 
livery before  the  pares  went  out  of  use,  b'lt  that  a  delive- 
ry of  the  contract  was  still  used  as  a  sigrt  of  the  party's 
^  assent  to  the  contract  contained  in  the  deed,  and  has  ever 

since  been  deemed  necessary  to  give  it  its  final  validity. 
Such  seems  to  be  tlie  origin  and  progress  of  the  seve- 
ral circumstances  of  writing,  sealing  anil  deliveiy  of 
deeds,  winch  came  into  use,  not  all  at  once,  but  at  differ- 
ent periods  of  time  ;  and  were  used  fur  perpetuating,  au- 
thenticating and  proving  the  complete  and  final  assent  of 
the  party  to  his  contract.  Any  other  concomitant  cir- 
cumstances,  besides  those,  ihongli  tiiey  have  been  some- 
times used,  and  said  to  be  incident  to  deeds,  as  signing 
by  the  party,  subscription  by  witnesses,  and  many  other, 
as  may  be  seen  in  Co.  Lilt.  7,  a,  yet  they  have  never  at 
any  pcrmd  of  time,  beeti  lielil  material  to  the  essence  of 
the  deed  ;  unless  perliaps  in  some  instances,  where  such 
oircumslances  have  been  required  by  statute:  and  that 
these  an- 1  lie  only  necessary  circumstances  is  proved  b}' 
all  law  writers  both  ancient  aod  modern.     Go.  Litf.  7  «. 


HAYWOOD'S   UEPOKTS. 


233 


says,  "  I  Iiavc  lernird  the  said  [)ar(s  •('  (he  deed  formal  Apr.17'95. 
or  ordi't  ly  |)aits,  for  tiiat  tlicy  be  ii'»'  of  the  cfisonce  of  a  '^"'^'"'^^ 
deed  I'f  fcoftmcnt.  For  if  sni  ii  :•  died  be  Avithout  premi- 
ses, habendum,  icnemlum,  rcddevium-  ihf  claiis''  nf  war-' 
ranty,  thr  chiisc  of  i?;  aijns  rei  testiuionhm,  ih*"  diiJe  and 
llie  chiiiso  of  hiis  tesiibus ;  yii  ihf  <i<'ed  is  good  :  In-  if  a 
mail  by  di-id  ;!,iws  laiuis  to  aiiotiitr  a  id  iiis  Ispm-,  with- 
out nii>rc  H;i_>in,i^,  Jhi.s  is  !i;oiid,  if  h«'  put  Iih  «f.il,  deliver 
it,  and  make  ii\ery  acmrilin^ly."  IFood  in  his  Insli- 
tutes.  »dds  "where  livery  of  seism  is  neossaiy,"  import- 
ing as  Lord  Coke  clearly  did  also,  th;ii  if  it  were  not  a 
deed  of  feoffirn  ut,  but  a  deed  of  some  other  kind,  then 
j)iiltiojj  !lie  se^l  and  d'.liverin;:;  the  writing,  would  make 
it  a  t^ood  derd.  The  same  defiiiitioo  is  given,  ai'd  the 
same  rircuaiNi.inres  mly  mentioned  as  necess.\rv,  in  2 
Rep.  A,  5  10  Rep.  92.  3  Bac.  .Sh,  393.  2  Bac.  M,  -93,  (20'*) 
wiio  files  2  Roll's  M.  21.  I  JNTs/s.  M.  623.  Ttrms  rfc 
ley.  xerbo  Fait.  Co.  Lilt.  171,  b.  Gilb.  Law  Evid.  78. 
Shepperd's  Touchstone  of  commnn  .Sssnrunccs,  and  many 
otlniH. 

After  the  jsroductiim  of  tills  concurrent  testimony  of  so 
many  aulhurs,  it  seems  Hc;ircply  necessary  to  say  ttiatthe 
subscri|iliiiii  of  witnesses  io  their  own  hanilwritin.i;  to  a 
deed,  was  never  lield  ne(  essary  to  its  con-titiition.  The 
reasons  olreatiy  assigned  for  the  iii'st  introduction  of  seals 
and  their  cofitinuaiicc  for  a  long  time  afterwards,  namely, 
tlic  illitrraturf  of  the  I.tity,  proves  also  that  the  snbs-rip- 
lion  of  v^  itiifss»'s  was  not  used  dnriitg  that  long  (it-iwid,  ' 
which  Commenced  soon  after  the  coi'qres'  juid  re-itiiuied 
to  the  time  oi  Hcnrij  VH.  and  Iknrtj  VIII.  Even  the 
Magna  Charta  of  King  Jit/iji,  givro  at  Ruoningmead  in 
the  year  1215,  mentions  the  An  ii'ui'-hiips,  Bi-liojw,  Ba- 
rons, &c.  tmt  piirticulaily  ntimiiig  them  ;  ;<m!  in  the  end 
is  atirsii'd  in  tliis  ni;iiiner,  testib^is  supra  dictis  et  multis 
aliis  ;  and  lest  any  thing  sliould  he  addid  ■>}•  s.i'ifeacfed 
from  the  forio  of  the  writing,  he  thei'eto  piii  his  seal. — 
Bl.  Laxv  Truds.  J5.  36.  in  1216,  tiie  (irst  charter  of 
Jlcnry  III.  is  a;  tested  thus,  testibus  omnibus  prennminntiS) 
et  multis  aliis.  I  infer  from  Ihif,  that  in  a  matter  of  so 
niucn  moment,  they  tertainly  used  the  best  metho  ot  at- 
testation then  known  or  used,  and  as  thi'>  jlidin-  siib- 
sciibe  llnir  names,  it  is  an  evidence  thai  the  sobscription 
of  witiitssesiii  iheir  own  liainlw  iting  was  tlien  not  prac- 
tised. The  attest. ition  of  piivate  deeds  was  i.>  'he  .same 
Mianner — the  names  of  the  witnesses  were  underwritten 
50 


234  Haywood's  reports. 

Apr.  1795  OP  endorsed,  and  this  was  used  only  :is  a  memorandum 
"^""^"'^^  to  show  who  of  ihe  pares  were  present,  to  the  end  they 
mi^ht  be  cftlled  iiprm  and  associated  to  tlie  jury,  upon  the 
trial  of  the  issue,  wfn-n  ilic  deed  was  detiieil.  Vide  Co. 
Liu.  6,  a  inid  b,  and  soineiimcs  it  was  said,  teste  comitntu, 
hundredo.  ^-c.  2  Bl.  Com.  307.  I  apprehend  tiie  practice 
of  subsniUirig  b)  the  witnesses  fame  into  use  at  the  same 
time  with  the  sidjscrihing  l>y  the  party — at  a  time  \'  hen 
the  law  resp'  ctintr  deeds  was  already  firmly  established, 
and  wlien  both  these  riicumstances  were  held  unessenti- 
al, thoiis;h  perhaps  both  of  tliein  at  the  time  might  be  use- 
ful— the  signature  of  the  party  to  pfo\e  his  seal  and  that 
of  the  witiii'sses,  when  tliey  roiild  not  be  found  to  prove 
the  delivt  ry  of  the  deed.  Foi-  when  it  was  pi  o\en  by  his 
own  signature  tobc  the  seal  of  the  party,  there  arose  a 
very  strong  presiimptitm  from  the  proof  of  tlie  handwri- 
ting of  the  witness,  that  they  tiad  been  present  at  the  de- 
(205)  li\ery.  But  tliis  kitnl  of  proof  was  only  resorted  to  when 
positive  testimony  could  not  be  procured,  and  was  nut  in 
the  party's  jiower  to  prodiire.  To  proceed  a  little  fur- 
tl»€r.the  statutes  of  2  Edw.  II.  and  9  Edw.  III.  speaking 
of  the  trial  upon  the  issue  non  est  factum,  sa>,  "  tlie  wit- 
nesses shall  be  sunimoiied  where  there  are  witnesses  na- 
med in  the  deed,  but  if  they  do  not  appear  at  the  day  ap- 
pointed, the  trial  shall  proceed  notvsithstanding  their  ab- 
sence." Hei.re  the  conclusion  follows,  that  in  those  days 
there  wfi'i'  some  deeds  without  witnesses  naineil  in  the 
deed,  and  as  to  tliem,  there  was  \\»  delay  of  trial.  Se- 
condly, that  there  were  otiier  deeds  wheiTiu  witnesses 
were  nami  d,  and  that  as  to  them,  the  trial  could  not  be 
in  their  absence,  for  they  were  to  be  summoned  and  make 
part  of  the  Jury.  Thirdly,  this  statute  directs  liiat  they 
shall  be  summoiied  as  usual,  but  in  case  of  their  non  ap- 
pearance, the  trial  shall  nevertheless,  go  on  l)y  the  juty 
that  are  present.  Fourthly,  that  there  was  some  other 
method  then  used  of  ptoxing  a  deed,  than  by  the  wilnes- 
scs  named  In  the  dted,  or  else  this  slalute  opei  aled  injiih- 
tice  by  ordering  the  trial  to  proceed  upon  the  first  default 
of  the  witnesses  (who  perhaps  ntight  lie  convened  at  ano- 
ther daj)  and  by  so  doing  rendered  the  deed  invalid  and 
void  ;  and  this  it  is  unfair  to  presume.  'I'hat  it  could  be 
proved  by  otiier  means,  is  held  by  Lord  Coke  121,  h, 
wheie  he  assigns  reasons  why  the  law  requires  the  pro. 
fort  of  a  deed  in  pleading  to  the  court,  vix,.  that  it  may 


UAYWOOD's   REPOllTS.  235 

i>e  proved  by  llic  witncssps,  or  otiipr  proof,  if  denied. —  Apr.  ir9j. 
Tills  opinion  is  stnridjly  confirnit-d  by  some  modern  de-  ^■^■^''"'*^ 
cisions,  wlicii-  Die  rule  of  !;•«  is  licld  t(t  be,  thut  a  witness 
shall  ni>r  lie  perniittfd  lo  deny  his  own  iUtestiilion.  The 
true  nieaiiinj^  of  whiihrule  is,  Ihar  if  In-  di.ci  di  n>  it  up- 
on the  Irial,  the  died  may  be  pioved  b.\  otliers  "ho  were 
not  altcsliiie;  v\itnesses,  and  wliosi-  name>-  were  neither 
subscribed  nor  endorsed.  Doug,  216.  4  Burr.  2226. — 
This  piovcs  beyond  all  possibilifj  of  dntibt,  that  the  at- 
testation of  witnesses  is  not  neci'ssaiy  :  lor  if  the  delive- 
ry may  be  jiroved  by  persons  who  did  not  attfst,  in  case 
of  an  attested  deed,  can  there  be  any  solid  reason  asigu- 
cd  why  tiiey  may  not  prove  the  delivery  in  rase  of  an  un- 
atlested  deed,  where  there  are  no  witnesses  to  deny  their 
atlestalion,  iind  by  that  means  biing  a  tjuspirinn  on  the 
instrument  1  Upon  this  point  I  think  it  may  be  aSii'med 
in  perfect  consonance  with  the  roles  of  law.  tliat  at  this 
day  the  aitestalinn  of  witnesses,  either  by  endorsing  or 
underwritincj  Iheir  names  in  the  liandu'ritinj;  oi'tlie  draw- 
er of  (he  deed,  or  by  a  subscription  of  iheir  names  in 
their  own  hanilwriting.  is  in  no  wise  essential  to  the  va-  (9,Qt^. 
lidiiy  of  the  deed  :  and  from  all  those  premises  we  may 
also  infer  some  other  conclusions. 

If  writing,  sealing  and  delivery,  be  the  only  essential 
parts  of  a  deed,  and  the  law  deems  it  valid  v\itliout  the 
further  ceremony  of  a  subscriptitni  by  witnesses,  then 
there  must  be  some  other  competent  means  of  proving 
the  fleed  otherwise  tlian  by  subscribing  witnesses.  It 
would  be  absurd  to  attribute  validity  to  an  instrument 
that  had  these  essential  parts,  and  yet  say  it  siionld  not 
be  read  t(»  benefit  the  jiarty  producing  it,  unless  proved 
by  subscribing  or  endorsed  witnesses. — But  what  other 
means  are  competent? 

To  form  a  decided  opinion  upon  this  head,  we  must 
remember,  that  there  is  but  one  general  rule  in  relation 
to  evidence,  and  that  is,  that  the  law  requiies  the  best 
evidence.  But  this  rule  is  always  relaxed  upon  two 
grounds,  either  from  absolute  necessity,  or  a  necessity 
presumed  from  the  common  occurrences  amongst  man- 
kind. The  lule  is  not  so  stubborn,  hut  that  it  will  bend 
to  the  necessities  of  mankind,  and  to  circumstances  not 
under  their  control.  The  rule  is  adopted  only  to  obvi- 
ate the  fraud  of  mankind.  One  sliall  not  deceive  the 
■jury  by  offering  a  less  convincing  testimony  to  establish 


286  HAYWOOD'S    HEPORIS, 

Apr.  1795.  dig  point,  \v)icii  it  apppitrH  llici'c  is  a  proof  niOre  eluci- 
^■•*~*'^^  dative  of  tlip  |iiiiiit  in  ccinlrover.sv  in  liis  own  possrssion' 
or  |iiiv\ei-,  wliidi  perliiips  In-  does  imt  nHt-i-  liccmsp.  it 
would  bf  ilrcisivc  :i,!;aiiisi  liini.  It  was  iicxpt  iiic;iiit  to 
exi  huU  tlic  partj  fiDin  JufMce.  nieiply  bicaiisp  lie  iiad 
not,  tliroiit;h  igJOiaiicc,  piii\id;-d  hiiiisclf  orit^inallv  vvitli 
tlie  best  ovidciirp  It  was  possilili'  foi-  him  lo  providr  :  for 
then  two  witiie-'sea  ^^llllld  he  hotter  than  onr  ;  ahinidied 
bctliT  than  two  ;  and  so  on  prnf^irssively.  A  wilting 
would  he  bi'ttpf  tlian  a  parol  lontrart,  a  deed  beiliT  tlian 
eilher.  and  a  rcroid  berifj'  Ihim  all.  Neither  was  it  in- 
tended ti>  depiive  any  mie  ofjusiice,  when,  \\itliout  any 
default  in  hiinsrlf,  he  h^d  lost  ibf  bi'ifer  evideiKe  which 
he  li;id  prn\jdi'd  urigiiially.  It  first  deprives  hiin  c)!'  the 
pow.r  of  iiuposiiit^  opin  u.s,  and  then  liiys  itself  ojten  to 
be  relaxed,  as  liiTuinstanre.s  shall  in  justice  I'eqiiirc. 
Tliesc  cirromst.tnces,  ks  I  bei^an  hefoie  to  mention,  are 
of  two  kinds  ;  tlmse  foiii.d<  il  on  absolute  iicci  ssily,  and 
th^se  fmndrd  on  a  necessity  ocrasioned  by  those  occur- 
rences which  are  couiinon  amongst  mankind.  We  will 
touch  upon  the  first  class  only.  In  the  case  of  deeds;  if 
there  he  siibscrihijij?  wititesses  to  them  (see  I  Jltkius  49, 
the  argument  oi'  Lord  JIurdivicke,  in  the  celebrated  case 
,  N  Ormichund  anil  Bake^\  and  mark  the  implication)  they 
^  '  nu'si  he  (>r'i\en  by  these  witnesses.  Because,  it  is  pre- 
sumed ih.it  these  witnesses  can  gi\e  a  more  distinct  and 
salisf.icfory  relation  than  any  others,  having  been  called 
upon  originally  for  that  jiurpose;  but  if  the  witnesses  be 
dead,  or  nol  to  be  found,  and  that  he  proved  to  the  court, 
then  the  liandwriling  of  the  suhscrihing  witness  may 
be  proxed:  that  raising  a  violent  jiresumption  in  favour 
of  the  dfid.  If  the  deed  be  lost,  and  that  ajipoar  to  the 
court,  tlien  the  cripy  'ludl  be  read,  as  affording  a  pre- 
sumpti  III  But  if  there  he  nocopv,  then  an  abstract  may 
be  aduiitted,  that  alfordinga  pr<ibable  |iresumption  ;  and 
if  no  abstract,  parol  evidence  of  the  contract  mny  be  of- 
fered. The  true  intent  of  the  parties  to  he  regulated  by 
tliat  contract.  sIihII  not  hedil'eaied  and  just  ice  oxerliirncd, 
so  long  as  any  evidence  remains  whi<b  throws  any  jiliin- 
inering  of  light  on  ihc  subject,  from  which  a  jury  may 
be  enabled  to  infer  the  leai  state  of  the  transaction.  T\\v. 
subscribing  witnesses  in  the  case  above  staled  are  not 
required,  because  the  deed  cannot  be  jjroved  without 
them,  as  has  been  already  evinced  ;  but  because  were 
ihey  not  produced^  the  Defcndarit  would  be  deprived  of 


nwwooira  rkvouts.  23T 

the  cross-examiiintion  of  tliosp  persons  he  had  provided  ^P'- ^'''^^• 
to  givi"  1e^tial"M3  for  hinis<-lf,  as  wt'll  as  for  tlic  ollu'i'^"'"^"**' 
party  ;  iiin!  who  il'  produced,  opuii  socli  cruss-cxinniiui- 
tioii,  would  pcrlvips  jKivc  nia(crin!  testimony  Inr  liiin. 
But  if  the  siibscrihiiii;'  witocsscs  aic  not  to  be  liiirl,  the 
law  ihiiscs  till' Ii'.ist  of  two  evils.  It  is  bx'tter  (o  dis- 
pense willi  the  witnesses,  and  receive  other  jiroof  which 
may  l>c  snllicien!,  tlian  adhere  to  tiie  rule  vjheii.iiicy  can- 
not be  had,  iind  so,  at  any  rate,  destroy  tlie  deed  ;  thus, 
if  the  oliligce  I'etnovcs.the  witness,  liis  arlviH'«(((lc;>t,ent 
tiuit  he  exeoiifed  the  deed,  is  proof.  //.  Bl.  Hep.  623. — 
In  all  cui^es,  therefore,  wliere  it  is  apparent  to  the  (diirt, 
ihat  t'liPtc  is  no  jiositive  testimony  to  be  had,  tiiece  niiist 
he  a  recurienei  to  testimony  funndod   on.  presiiinptions,  , 

or  cirnimstatitial  proof  as  it  is  railed.  Ticrein  refjuir- 
ing  first  the  hesi  pcesiitiiplivc  proof  that  is  to  he  li.'.d, 
and  in  defaull  of  th-ii.  t!ic  next  4iest.  iiritsi  we  |)a,te4>ji£ii«L  = 
through  all  tlie  sever;il  grades  rtf  (■iiruiii:.tai»ces  that 
raise  prcsoniplion,  tVoii)  that  niiicli  Lord  Cake  terms  tlie 
violent,  iimil  we  arrive  at  that  which  excites  the  ligiit 
presiniiption  that  moveili  not  at  trll. 

If  tills  be  the  tiiie  theory  of  evidence,  and  if  an  unat- 
tested iV'cA,  being  valid,  may  some  way  or  other  Uf. 
proved,  as  it  rertainty  ir^ay  ;  then  in  the  first  place  tiic 
party  must  produce  witnesses  who  wcr(^  present  at  the 
execution,  tliongh  not  eiidi>rsed  noi-  suhscrii>id  ;  as  in  /o/.qn 
the  case  wheiT  snbsrrihing  witKCSses  to  an  attested  dcct!  *■  ■' 
deny  it,  and  if  there  ai  e  no  such  witnesses,  llien  there  niiisf. 
he  a  recurrence  to  presiiinplive  testimony.  And  '-.ete,  as 
ill  the  case  of  an  attested  deed,  when  ilie  wiiiiisses 
were  not  to  be  liad,  proof  of  the  party's  signatuie  would 
be  admitted  as  a  prnof  of  his  seal  j  so  in  the  casH  of  an 
unattested  deed,  I  cwn  '.ee  no  reason  why  the  s.iinc  spe- 
cies ol  proof  should  not  be  atiioiited.  where  no  bettei"  is 
obtaineil.  Tliere  also,  Lord  Coke's  doctrine,  so  often  he- 
fore  <ited,  of  loinpaiison  by  seals,  handwritiiii:!;,  &c. 
might  be  admitted.  The  law  aNo  will  here  cliiise.  (ho 
least  of  t\\o  CN  ils  ;  and  if  sufricieni  proof  of  the  seal  shall 
be  oRWed,  other  circonisiances  shall  be  admitted  to  |)rovc 
the  delivery.  I'liis  is  yet  neces-ary.  But  a  small  mat-  t 
tcr  is  snilicient  to  establish  it,  when  once  (he  seal  it; 
proved  to  the  satisfaciion  of  the  Jiii-}.  a^  leaving  the  deed 
behind  him  alt<i'  it  was  se.lcd  aii'l  read,  held  a  gooil  do- 
Uvery.  Cro.  Elia.  7.  Shippen'scuse.  So  where  aiiobli- 
.•'i'tion  was  written  in  ;i  book,  and  tlie  party  put  lits  hand 


238  HAYWOOU's  UEFOUl!-. 

Apr.  ir95.  and  si-allo  lliclcaf  in  wliirli  it  was  wi-iitcii;  ail|Uil,!;««l  <liis 
'*^'^'~'*^  Wiis  siifliriiiif,  (liiiii.u;!)  tlicrr  \\  us  no  rvidi'rirc  of  a  »l('livei'.v< 
Cro.  Eliz,  613.  Fox  \.  Wright,  iiml  in;tny  oiIi.t  csHfis 
to  llic  saiiir  I'tTi'Ct.  ICiHi  |ii)siti\e  testimony  ran  bi's^ivtn 
of  a  (lelivcrv,  llie  pai-(y  iiio>it  he  aliowpd  to  prtno.  siicli 
cir(Mini--tanits  as  uiii  iriiiucc  the  jury  to  find  a  dt'livcr\. 
In  ilicsc"  tuo  r:isc's  last  ritcti,  it  i.s  siiiciy  ntuie  n.iii))ati- 
tible  Willi  justice,  and  ilie  rule  «(  eviclenre  in  siiniiai' 
cases,  tn  admit,  tliati  ^u  oiire  to  destroy  the  deed  by  r< - 
jectin/:^  sucli  ('iicninstanecs  which  the  Juiy  irii.i;iil  dech) 
(iufficieiit  to  r(nivince  ihcir  initidn,  to!;ether  wiih  oilier 
circ  1111  .lances  tiny  might  tlietnsches  be  acquainted  w  iili. 
SuitI}  tlicie  are  a  great  vaiieiy  of  (■ircninstaiiccs  fioin 
wliicli  a  delivery  niigiit  very  innpcil}  he  iiilei-ird.  Sup- 
])()Se  a  lUed  ol  feoftiuerit  proililced.  and  the  hanil-writing 
of  the  party  j)!tive(l,  ami  also  posses^iioii  according  to  the 
deed.  Co.  Litt.  6,  h.  Gilb.  Law  Evid.  100.  Su|t|tose 
part  of  (he  iirincijial  bi  paid  upon  a  bond  by  llie  Defen- 
dant, or  interest :  or  sii|i|iose  the  bond  should  be  shewn 
fo  him.  and  he  requested  the  paiiy  not  to  bring  suit  upon 
it :  suppow  the  band  suffi'ii-nlly  desciibed  in  a  letter  and 
ackiiowleiiged.  2  J^'eLs.  762,  pt.  45.  2  Eq.  Ca.  M.  413. 
pi.  9.  Suppose  u|ion  tlie  back  of  tlic  ijoiid  he  enter  an 
endorsement  taking  iiolice  of  it  as  his  bond.  BMer2b4. 
C.  IC.  B.  500.  Suppose  he  state  it  in  a  bill  or  answer 
in  Chancery.  BuLler  236.  Supimse  In-  has  madea  parol 
confession  of  it.  Dong.  92,  216,  in  which  last  case,  the 
proof  evidently  would  have  been  deemed  siifticieni  had 
(209)  tiiere  been  no  subscribing  witness.  Or,  by  likeparilv  of 
reason,  suppose  any  other  possible  ciiTumstance  from 
which  a  jury  might  justly  and  (airly  infer  a  delivery, 
surely  it  ought  to  be  received.  Even  the  possession  of 
the  obligee,  where  the  other  |)art\  could  not  shew  the 
illegal  commencement  of  that  |iossessio>i,  might  afford  a 
pi'esumption  in  favor  of  the  deed.  But.  as  there  is  no 
case  to  Warrant  me  in  g<iing  so  far,  I  will  not  yet  say 
that  lliat  ( ircumsiaiKe  alone  should  be  left  to  the  jury. 
But  such  circumstances,  as  arc  btfore  mentioned,  and 
all  others  of  equal  \v  eight.  I  do  ihinU  should  be  left  to 
(hem,  to  infer  a  delivery  from  or  not,  according  to  the 
best  of  their  ju'  gment.  'i'herefore  in  (he  case  staled,  I 
am  of  opinion,  that  the  VAiiness  was  properly  admitted  to 
prove  the  signatuie  of  the  Defendant j  and  that  the. jury 
were  at  liberty  to  infer  fiofti  thence,  that  the  sea)  affixed 


HWWOOB'S  REPORTS. 


239 


was  the  spal  of  tlie  jiarfy ;  and  as  llie  admissibility  QfApT.i79S. 
this  evidence  is  tlie  'inly  donht  sfiUcd,  as  tho  jury  liave  *"^'"'''^*^ 
Found  a  vei<lirt  iti  favor  of  the  I'laiiitiff  subject  to  tliat 
doubt  oiiFy.  if  must  bi>  intended  theic  was  some  otiier 
circumstance  t^'ivon  tbeui  in  evidence  suflir:iently  evincing 
the  delivery  :  and  tlierefore  as  toihe  fust  objection  stated 
ill  tliis  special  case,  there  ous^bt  (o  be  judgment  for  the 
Plaintiff  iiotwitiistanding. 

It  seemed  (o  be  insisted  mi  at  tlie  trial,  tliat  ibe  clause 
"In  witness  wberenf,  I  liave  hereunto  set  my  hand  anil 
seal,"  iniglit  be  received  as  an  evideiice  of  the  seal  ;  and 
as  some  case  may  bereafter  occur,  in  which  that  clause 
may  have  only  the  u'li-ds  "  In  witness  whereof,  I  have 
hereuiii'i  set  my  hand:"  when  in  I'art  flier;^  may  be  a 
seal  affixed,  I  will  remark  npoii  tliis  clause  a  little  ;  more 
(jspecialiy.  as  it  is  set  dov.ii  in  this  s-iecial  case,  and  the 
opinion  of  Ibe  coui-t  is  expected  upon  it.  1  would  fibsw-vo 
then  in  tfie  first  place,  that  this  clause  contains  a  part  of  the 
words  of  the  deed,  and  ili/^.deed  ilself.  or  any  pai-t  of  it, 
raiinot  be  read,  until  the  sealinej  and  ilclivery  of  it  be 
tirst  proved  ;  and  of  C"iisequence.  this  clatiss  cannot  be 
read  to  prove  the  seal  until  after  the  seal  has  proved  the 
clause  itself:  and  then  as  to  t!ie  purpose  of  its  proving 
or  disproviiiij  the  seal,  it  is  totally  useless ;  aiul,  that 
such  a  clause  is  not  only  unnecessary  in  itself,  but  that 
the  words  of  it  have  always  been  disregarded,  is  proved 
by  Bucli  ao  abuiHlaine  of  authorities,  that  the  bare  cita- 
tion of  them  will  fully  establisji  the  position  that  the 
omission  nf  this  clause  or  the  addition  of  it,  or  the  words 
of  it,  can  have  no  influence  whatever  upon  the  writing  (210) 
itself.  Some  oftheui  are  tbe  following:  Co.  Lilt.  7,  a. 
Sttlk.  714..  2  Rep.  5.  The  deed  is  good,  though  tliis 
clause  be  omitted.  2  A^els.  623,  pi,  7,  who  cites  Moor  o. 
U  is  not  a  cooclusion  i>f  the  deed :  lor  that  which  is  writ- 
leii  after  if,  is  as  much  part  of  tlie  deed,  as  that  which  is 
written  before.  Also  2  ,/VeiS.  621.  j)/.  13.  who  cites  S 
liuhlrode  300.  '•  In  witness  whereof,  I  have  hereunto 
set  my  band  :"  the  deed  is  good,  if  there  be  a  seal,  ihougli 
ibeclaiisc  do  not  mention  the  seal.  Cannivg.  Dict.verhu 
J)ceds,  cites  IMlij  75,  and  by  tli'-  like  reason,  if  it  men- 
tion bund  and  seal,  still  it  can  operate  nothing.  2  Str. 
S14,  815.  L.  Rail.  i541.  For  the  sea!  is  not' establish- 
ed by  ilie  words  of  the  writing,  but  e  couverso :  the  words 
■  'iTitained  in  tji'    >.v  riling  ai'c  proved  to  lie  the  word*  of 


24U  HAVWOOU'S    REPORTS. 

Apr  ir95.  (|,p  |iai'ty  by  his  seal,  Ai'd.  iftlie  words  roiil.iincd  in 
*'^'^^""**^  this  ilaiisp  wen-  allmved  ti>  (h-hvp  any  thing,  tlif  iiarly  to 
lii-  lieneiitcd  b\  the  doi'd  wimld  luivi-  iiotliiitg  to  do  Inii  to 
iiiscri  thi>i  cliuisp,  ••In  wiiiiCH-s  vvliiM'«'i>f  I  liavi-  scaled  and 
dclivOKil,"  and  the  i\  i'lincL'  iif  tlin  (Ifd  WDuld  be  com- 
jileic.  Snii|>iise  in  ihe  juisiMit  clause  Mia!  tiip  woril  seal 
had  luii  ')M'n  in  the  liuusc  and  yi'f  "ic  seal  should  ap- 
l)eui,  ^^illl  ihe  word  se:il  .vitliin  it,  in  the  liandwriting  at 
the  obligor,  as  wan  the  tai.t  iiei  e  :  wouM  it  n<ii  be  a  harsli 
(leterniinati<i!»  to  say  it  was  not  his  seal  ?  Yet  we  know 
such  casH.H  ol'len  oceur. 

1.  ll  may  be  objected,  (hat  iftlie  words  contained  in 
this  clause  are  not  stiHVrcd  to  Iii4\e  any  wei:;!tt,  llicn  tlie 
holder  uf  a  in'oinissory  note  might  add  a  seal  (o  tlie  name 
of  the  party  ;  a!id  by  that  means  avoid  the  -.ut  of  limita- 
tions, and  als't,  cifciiinseribe  the  (laety  in  point  o!' evi- 
dence. To  tills,  the  anS'Aei'  is,  that  tlie  i-iiled  of  evidence 
were  established  long  before  the  statute  of  limitations, 
and  that  act  did  not  intend  (o  alter  tlein. 

2.  'I'hat  ilie  law  has  guarded  against  such  attempt  by 
tuaUing  the  writing  totally  void,  if  it  should  be  ht'eiuj)!- 
ed  ;  liiid  also  subjected  the  parly  to  \iiy  severe  punish- 
nient  for  tiic  attempt. 

5.  If  thirc  are  witnesses,  they  may  be  produced  tosav 
what  they  know  of  the  seal. 

4.  If  tlnre  are  no  witnesses,  the  circumstances  to  prove 
a  delivery,  iiiay_throw  some  light  ui)()n  the  seal  ithelf. 

5.  'I'be  law  will  not  (ii-esiime  such  turpittiih-  in  any  man. 
The  possibility  cifbis  cmninittitig  such  an  oiTi-nce  will  iioi 
vitiare  liie  act,  as  if  he  h.id  actually  eommitted  it;  and  iii 
this  CHse,  as  in  ail  others,  the  injurcil  partv  should  j)4-ovc 
thi-  injury  done  hitu..  Again,  if  the  instrmniMit  should  be 

.211)  held  invalid,  because  possibly,  the  seal  itiighi  have  hi-cn 
affixed  alter  the  execution  of  it.  then  more  good  dieds 
would  be  destroyeil  upon  suspicion,  than  frauds  |ire\eiit- 
cd  b}  it.  For  few  men  will  itti  nipt  a  fraud  of  this  kind, 
under  tlw  multiplied  litzard  ol  receiving  infamous  corpo- 
ral puiii  i:mini,  and  iiiing  forever  degraded  from  their 
rank  in  society,  and  tlie  total  loss  of  the  thing  serured  by 
the  deed.  es|oiially  if  it  hi-  of  great  value.  Expi-rience 
shows  that  mrn,  iioi  well  kii  •wing  the  lechnical  distinc- 
tion between  a  seal  :ind  r^.-ir  sign.iiurc.  say,  witness  their 
hand-,  <in:l  put  their  seals  also,  and  econverso.  declare  in 
this  clause  that  they  have  put  their  hiinds  and  seal?'. 


IIAYWOOO'S    REPORTS.  241 

where  they  have  subsciibcil  their  names  only.  Here,  as  Apr.1795. 
in  all  other  cases,  the  hw  chuscs  the  least  of  two  evils.  ^^"^^''^^ 
Once  more,  the  subscribini?  witness  to  a  bond  may  have 
subscribed,  beitig  about  to  (Jeparl  for  a  foreign  country, 
when  ill  fact,  the  deed  may  not  have  been  executed,  but 
this  possibility  will  not  cause  a  rejection  of  such  testi- 
mony, nor  shall  the  seal  be  rejected  because  nol  mention- 
ed in  the  clause,  for  sucli  possibility  as  is  in  the  objection. 

But  it  may  happen  in  the  case  of  an  unattested  bond, 
that  there  may  not  be  sutficient  evidence  by  circuuisrances 
to  prove  the  delivery  ;  and  this  brings  us  to  another 
question  referred  to  ihe  court  in  tliis  sjiecial  case,  which 
although  it  is  not  necessary  to  be  considered  in  order  to 
the  determination  of  the  case,  which  is  an  ctioii  of  debt, 
and  (lepetids  entirely  upon  the  qoestiim,  wi.eth'i  tais  be 
the  deed  <if  the  party  or  not .'  Yet,  as  ii  luis  been  refer- 
red- 10  the  court,  I  suppose,  for  the  purpose  of  iiiMug  the 
law  settled  upon  this  point  also,  1  will  make  a  lew  re 
marks  on  it. 

The  question  is,  whe'her  an  action  on  the  case  lies  up- 
on such  all  instrument,  Nvhen  it  cannot  be  proved  as  a 
deed. 

As  to  this,  there  is  one  rule  certain,  that  no  sealed  in- 
strument can  be  given  in  evidence  to  support  an  action 
on  the  case.  Gilb,  Law  Evid.  100.  Cro.  Jac.  SO'-,  508. 
The  law  has  given  a  remedy  of  another  so.  t  upon  those 
sealed  instruments.  An  action  on  the  case,  depends  up- 
on parol  evidence  or  writing  (mly.  Therefore  the  action 
on  (he  case  must  necessarily  be  desti'oyed,  when  the  evi- 
dence to  support  it  is  destroyed  by  extingui-iliment ;  and 
all  parol  ( ontracts  and  agreements  are  held  to  be  extin- 
guished when  they  become  clothed  in  a  (onii  art  of  great- 
er solemnity,  or  evidenceii  by  a  scaled  instrument ;  as 
these  sealed  instruments  are  themselses  extinguished,  so  ^^,„ 
that  no  action  can  be  supported  upon  them  between  the  '"^*-' 
same  ()arties,  when  they  have  passed  in  rem  judicatam. 
and  have  become  matter  of  record.  All  this  depends  up- 
on the  rule  of  law  alrendy  mentioned,  that  the  best  evi- 
dence shall  be  required.  Thus,  a  bond  shall  nm  be  evi- 
dence when  theie  is  a  record  of  the  same  m.nier,  nor  pa- 
rol evidence  when  there  is  a  sealed  instrument.  This 
rule  of  law  is  not  to  he  denied  ;  and  then  the  whole  ques- 
tion is  reduced  to  this— whether  when  a  seal  appear,  the 
party  who  TToduecs  the  writing  to  which  it  |is  affixed. 
.^1 


242  havwood's  nEPORTS. 

Apr.ir94.  shall  be  pcrmiftpd  to  say  it  was  not  a&xed  to  the  wri- 
^'^"""'^^  tinjSf  origiiinlly?     It  tias  been  for  a  lonjc  time  a  standin,^ 
rulo  i)f  law,   framed  first  indeid,  for  Uie  protection   of 
deed  ,  the  «rily  written  iiistriiuieiitH  thi-n  in  use,  for  un- 
sealed instriimintM  are  but  of  modern  date.     3  Term  330, 
but  in  policy  extended  to  every  written  contract,  that  the 
leiist  alteration  in  any  mateiial  part,  shall  render  the 
whole  toiiilly  void  ;  and  even,  an  immateri'^l  alteration, 
made  by  the  holder  of  the  instrument,  shall  make  it  void 
also.     11  Rep  27.     A  bill  of  exchange,  i)ayable   three 
months  frnm  ihe  26ih  of  November,  was  held  to  be  totally 
void  ;  it  bfint;  found  by  thejui-y  that  the  top  of  the  figure 
6  Was  blotted  out,  while  in  possession  of  the  holder,  so 
as  to  make  ii  appear  to  be  the  201h  instead  of  the  S6th, 
and  by  that  means  to  accelerate  the  payment ;  though  in 
fact  t">  such  acceleration  of  payment  had  been  attempted. 
,        }  Term  Rep.  520.     Now  then  to  apply  these  rules  to  the 
'ase  iti  hand,  if  the  .seal  was  not  affixed  to  the  instrument 
at  til-   time  of  its  execution,  and  tlie  addition  of  the  seal 
afterwards  be  an  immaterial  alteration  only  ;  then  the  in- 
strument being  in  possession  of  the  linlder  or  obligee,  the 
presumption  will  be  that  it  was  added  by  him,  and  will 
turn  it  H|»on  him  to  prove  how  it  came  there,  like  the  case 
where  the  seal  was  torn  off  by  a  cliild — this  raised  a  pre- 
sumption of  the  deed  being  cancelled,  atid  turned  it  upon 
;lie  Plainiiffto  show  how  the  seal  came  to  be  torn  from 
thp  wriiing.     Cro.  Eli%.  120.     Pulm.  403.     Lntch  226. 
In  the  case  of  the  bill  of  exchange.  Lord  Kenyoii,   speak- 
ing of  liie  blot  which  made  the  alteration,  said,  if  it  had 
been  done  by  accident,  that  sliould  have  been  found  (o 
excuse  the  party.     He  thctuarht  the  alteration  having  been 
made  after  the  instrument  came  to  the  possession  of  the 
payee,  raised  so  strong  a  presumption  of  his  guilt,  tliat 
in  point  of  law,  the  instrument  should  be  deemed   void, 
unless  he  could  show  the  blot  happened   without  his  pri- 
vity:   and  so  I  am  induced  to  tliink  in  the  present  case, 
that  if  the  addition  can  be  considered  as  an  immaterial  ad- 
'213)    dition  only,  yet  to  make  men   careful  to  preserve   their 
written  instruments  free  from  alteration  or  addition,  it  is 
good  policy  in  law  to  suppvse  the  al'cration  or  additioi/ 
made  by  the  tiolder  or  obligee  himself;  therefore  the  mo- 
ment he  shows  a  sealed  instrument,  and  says  tlie  seal  wa*; 
not  originally  affixed  to  the  wi  iting,  the   wlndc   iiistru 
raent  must  be  deemed  void,  unless  he  can  show  that  \\\^ 


Haywood's  reports.  243 

aea)  was  affixcil  to  it  without  any  inivity  of  his.  But  I  Apr.i79j. 
take  it,  the  a'ldition  of  a  seal  is  not  an  immafeiial  alt^r- *'^'^''^*^ 
ation  only.  1'  avoids  the  art  of  liinitafiims — it  excludes 
the  giving;  1  if  ;)arol  testimony  to  explnin  or  control  the 
writing  i-i  any  'ihape — it  makes  the  party  liable  to  ano- 
ther kind  of  action  than  that  he  at  first  stiimlated — it  de- 
prives him  of  that  latitude  of  evidence  he  mijcht  have  had 
in  the  action  on  the  case  ;  and  before  the  act  for  the 
amendment  of  the  law,  would  h-avc  him,  in  the  cas<-  of  a 
single  bill  as  this  is,  no  method  r)f  discharging  himself, 
but  by  a  release  or  acquittance  under  seal.     In    every  i 

point  of  view  therefore,  the  nddition  of  the  seal  is  a  most 
material  alteration  ;  and  if  it  be  material,  tlien  no  mat- 
ter how  it  happened,  or  by  whom  tiie  alteration  was  made> 
the  whole  insti-nment  is  totally  void,  and  no  anion  what- 
ever can  be  supported  upon  it,  no  m<ire  th.ui  if  the  seal 
had  been  torn  off  t'>  make  way  lor  proof  of  tlic  writiag 
as  a  simple  contract.  The  law  requires  that  tlie  con- 
tract shall  remain  unaltered — that  tiie  party  m.iy  not  he 
subjected  in  any  other  shape  or  manner  than  tbaf  which 
he  has  consented  to.  Besides,  if  when  the  signature  of 
the  party  is  proved,  that  stands  as  presumptive  evidence 
of  his  seal;  then  an  unat'ested  instruitient  being  produ- 
ced, and  the  handwriting  of  the  party  proved,  tlie  ]»re- 
suinption  instantly  arises  and  will  stand  for  truth,  until 
the  party  Plaintiff  shall  overturn  it  by  evidi  ncc,  account- 
ing for  the  affixing  of  the  seal,  and  that  it  was  done  with- 
out the  knowledge  of  the  Plaintift',  or  any  criminal  intent 
in  him — and  so  qnacunqiie  via  data,  the  seal  a|ipcaring,  it 
must  be  accounted  for,  to  say  the  least,  by  the  Plaintiff 
himself — and  therefore  I  am  of  opinion,  upon  the  last  point 
reserved  in  this  special  case,  that  debt  is  the  proper  ac- 
tion to  be  brought  upon  such  an  instrument  as  is  therein 
slated ;  and  that  the  action  on  the  case  can,  in  no  in- 
stance, nor  in  any  possible  case  wiiatever,  be  supported 
upon  it — and  this  opinion  receives  credit  from  the  arga- 
ment  of  Justice  Heath,  in  the  case  of  Gibson  ^  Johnstoik 
V,  Minor  dj-  Foster,  reported  in  H.  Bl.  Rep.  622,  w  here, 
arguendo,  lie  lays  it  down  as  clear  law,  that  if  the  delive- 
ry of  a  bond  cannot  be  proveti,  it  cannot  be  concluded  (214) 
that  it  may  be  given  in  evidence  as  a  note  should — be- 
cause the  creditor  havitig  taken  his  secuiity  in  a  deter- 
mined form,  he  cannot  at  his  pleasure  alter  it  against  tl>£ 
stipulation  of  the  debtor  ;  and  yet  says  he,  llw  obligation 
includes  a  promise  to  pay  money. 


244  HAYW00D*8   REPORTS. 

Apr.irss.      Judge  Macat  "38  of  i>piiiion  the  instrument  must  be 
^^""'^'^^  declared  ii:".  as  .<  sealed  instrument. 

Judi^e  Williams  was  of  opinion  that  the  instrument 
could  not  l>p  pnived  as  a  sealed  instrument,  fur  want  of 
attestation  ;  and  therefore  ought  fo  be  declared  upon  as 
a  writini;  only. 

Judge  Ashe  seemed  to  di<!sent  from  the  opinion  of 
Judge  Macat  ;  but  <oncluded  that  there  should  be  judg- 
ment for  the  Plaintiff. 

NoTF.  —The  law  of  this  case  is  now  so  well  estiibrished,  and  it  is  so 
comm<'n  for  ^n  unattested  bund  for  the  payment  of  money  to  he  de- 
clared on  as  »  st-aled  instrument,  and  proof  of  the  obligor's  handwri- 
ting to  be  admitted,  not  only  as  evidence  of  the  seal,  bui  also,  coup- 
led with  tne  Plaintiflfs  pcisession,  as  evidence  of  the  dtlivprv,  that 
we  are  surfitlsed  it  should  ever  have  heen  held  otl^erwise.  The  case 
of  Clements  (J  Co.  v.  Eaaon  &  Wright,  avie  18,  and  the  division  of 
the  conn  upon  the  qu'-stion  in  this  case,  show  that  a  contrary  opini- 
,  on  did  once  prevail.  But,  the  viry  able  exposition  of  the  law  upon 
the  subjfct  by  Judge  IIatwood,  in  this  case,  exposes  at  once  the  er- 
roneous grounds  upon  which  th^it  opinion  w^.s  formed,  and  establish- 
es the  true  position  beyond  the  reach  of  doubt  or  controversy. 

Strong  V.  Spear. 

An  indnrser  may  sustain  an  action  in  his  own  name,  the  possession  of 
the  note  being  prima  facie  evidence  of  payment  to  the  indorsee. 

Debt,  and  nan  est  factum  pleaded:  upon  the  trial  the 
bond  was  prodiired,  and  it  was  entlorsed  with  an  assign- 
ment to  a  Mr.  McKay — whereupon  it  was  objerteil  hy  the 
Defendant's  counsel,  that  the  interest  of  this  bond  being 
in  McKay,  the  prc-ent  action  by  the  original  obligee 
coulii  not  be  supported  ;  such  assignment  by  1786,  c.  4, 
vests  the  wh<de  property  of  the  bond  in  the  assignee. 

Per  atriam,  this  case  is  like  that  of  Smith  and  St.  Law- 
rence latel>  derided  at  Hillsborough  ;  ihe  bond  being  in 
the  possession  of  the  endorser,  is  evidence  prima  facie, 
that  lie  has  paid  the  endorsee  for  it.  Endorsers  I reqncnlly 
bring  suit  upon  bills  endorsed  by  them,  when  the  en> 
dorsee  is  i-efused  payment,  or  cannot  obtain  it  and  re- 
turns the  bill,  leceiving  payment  ofthe  endorser  himself. 
The  Case  in  Show.  164,  of  Dickens  v.  Harriott,  is  very 
similar  to  the  present — there  a  bill  was  drawn  upon  a 
person  in  Dublin,  the  payee  endorsed  to  Dickens,  .md  he 
toanottier,  who  demanded  payment,  and  po'c-^wd  for 
non  payment — Dickens  then  sued,  and  it  was  annrngst 
'>ther  things  objected,  that  the  interest  was  vested  in  Uie 


HAYWOOIJ'S    REPORTS.  245 

last  endorsee,  as  apjieared   by  tin-  trulorsemeiit — then  Apr  1795. 
raercli-mts  v, ore  exainiticd,  wlm  .said,  whtifxcr  (lie   bill    ■^-^'^^ 
wa.s  letiirru'd  info  the  pos^icssioti  of  the  last  eiidii-ser.  he 
might  maii)taiii  an  artiKri.     The  court  n-cired    this   rase 
npori  ineiiioiy  onlv.  tiie  bonk    not    hein.e;   in    court — and 
judfiiment  in  tlie  pn-sent  rase  was  siven  to  tlie,  Plaiirtiff. 

Note. — Some  of  the  har  seeme  1  dissatisfied  witli  this  decision,  as 
they  wire  witli  tlvi  of  iSmiVA  and  St.  Lawrence  a'  HilIsbor<tii;li  The 
c.ise  cilf'  froli  Shower,  suys,  :»hovet*€nty  mTcbantswert-  '  x. mined, 
and  affirnirrl  tliat  ill  Plai.tifV  had  a  right  lo  the  action,  :dtli.>iigh  he 
had  endorse  '  to  7).  :h'- bill  being  returned  in'o  liis  p<  ssession  ;  but 
then  the  indnrscmiir;  ii-  tli.i'  case  was^,  pay  to  D.  value  on  tny  ac-  (215) 
count :"  perl.ap:,  this  made  JO.  onlv  his  servant  or  agent,  in  the  same 
monii'-r  as  if  ■!  had  bien  p-.iy  tc  JJ.  form)  use.  See  2  £urr.  1227. — 
Doug.  117,  G59.  The  c.ise  of  Sin'th  and  St.  Lnivrence  was  f.  uuded 
upon  the  case  in  Sir.  1103.  Where  the  court  permit;ed  ihe  PlainlHF 
to  strike  out  the  endorsement,  but  but  was  a  blank  i  ndorsi  im  nt  only. 
It  was  also  founded  in  part  upon  1  Lul.  885,  where  the  second  en- 
dorser suppotted  an  action  tliough  tilt  re  were  two  subsequent  en- 
dorsements to  his  own  appearing  on  the  bill  ;  but  there  he  statf'd  iu 
his  declaration,  that  the  last  rndorste  not  belnjr  able  to  pr  cure  pay- 
meiit  from  the  acceptor,  b'^  the  I'laintifT,  who  \v:is  the  second  en- 
dorser, paid  it  to  the  last  indorsee,  and  iiecame  again  entitled  lo  the 
bill.  The  payment  was  actii.illy  ht'edjieil  ard  not  denied.  And  in 
Claxton  and  Sn.ii'i,  3  ifo.  86.  2  .V/ioiu.  441,  494,  the  payment  seems 
to  be  relied  on,  as  that  wliic'i  i  nttlcd  the  endorser  to  the  action. 
Kiitil.  73.  Also  the  case  in  L.  Hay.  742,  743,  where  the  hut  endorsee 
sued  the  second  endmser,  and  recovered;  whereupon  the  S' cond 
endorser  sued  the  acceptor,  and  upon  the  trial  prodnce<l  the  hill  and 
the  protest;  but  becnise  he  produced  no  receipt  for  he  n^oncy  from 
the  hist  endorsee  he  was  nonsuited,  mid  all  the  court  coiicurrtd — iliat 
there  must  be  payment  to  revest  the  property  otthe  note,  strenglli- 
cns  the  opinion  that  payment  is  necessary.  Tbf  nec^'ssiiy  cf  a  pay. 
ment  to  revest  Ihe  pmperiy  of  the  note  in  the  endorser,  inu.st  be  ad- 
mitted ;  and  is  not  denied  in  the  n^  s  of  Strong  .nd  Sprur,  Simth»ni\ 
St.  Lavirence,  and  Book  and  Ca,in;e.ll — the  only  piint  of  diftir-nce  be- 
twet  n  these  cases,  and  those  ifci.iei  in  the  books,  is  this,  that  the 
books  require  actual  proof  of  payment  by  a  receipi,  or  at  least  viva 
ooce  proof.  TIksp  cases  dlow  the  possission  of  tl'.e  endoiser  to  be 
presumptive  evidenc  of  payment — as  the  payee  or  endorsee  of  a  bill 
is  never  ohfuied  lo  part  with  it  until  he  h^.s  received  payment  from 
the  endorser,  which  is  a  circumsi a ice  ulncli  renders  the  presump- 
tion very  strong.     Kidd  88.     Beawes.  461. 

Note. —  Vide  note  to  Dook  v.  Caswell,  mite  18. 

Adams  r.  Sjtcai'. 

Debt,  and  non  est  factum  pleaded :  t!ie  bond  was  pi'o- 
duetd  on  the  trial,  and  aj)pe;iied  to  be  a  bond  in  Ihe  penal 
sum  of  six  Imndri'd  and  t  >eiiiy  fixe  pound.s,  with  coiidi- 
tioti  to  p.iy  (iiT  iKilfof  that  snni.  The  «rit  was  for  the 
smn  incntinncd  in  ihe  rondition.  and  of  course  the  dccla- 


246  HAYWOOD'S   REPOKT'4), 

Apr.irss.  ration  was  supposed  to  bi'  fot  tlic  same  sum.  Et  per 
^•^"""^^  curiam.  Hie  condition  ;  no  pnrt  of  ttie  obligation,  it  is  in- 
sefted  fur  tlie  bi-nefit  <>f  the  obliefor,  to  exempt  liim  from 
the  payment  of  the  penalty  if  lie  chiisus  to  comply  there- 
with ;  hui  he  has  his  option  not  to  perform  ilic  rondition, 
and  to  forfeit  the  bond  if  he  is  so  disposed — consequently 
the  bond  produced,  which  is  for  six  hundred  and  twenty- 
five  pounds,  does  not  agree  with  the  bond  set  forth  in 
the  declaration — but  as  it,  has  been  a  practice  agreed 
upon  by  the  bur,  to  suffer  an  alteration  in  the  writ  wlieii 
issued  by  the  Clerk  as  this  was,  where  heliascomtnitled 
a  mistake,  we  will  now  recommend  to  the  opposite  at- 
torney to  consent  to  tiie  alteration.  Howeve  he  would 
not  consent  to  tlie  alteration  at  present,  but  agreed  it 
should  ho  made  at  any  lime  after  tiiis  day. — Whereupon 
by  consent  a  juror  was  witlidraw'ti, 

XoTE. —  Vide  , Anonymous,  post  iOl,  and  the  note  to  Cowpery.Et- 
■cards'  Adm'r.  ante  19. 

f"16^      Surviving  Partners  of  Auley  MrNaughtou  and  Co-  v. 
^^  William  Norris,  Surviving  Partner,  &c. 

Assumpsit  for  goods,  wares  and  merchandize  sold  and 
delivered.  General  issue  and  statute  of  limitations 
pleaded;  and  the  piincijial  questi()n  of  law  was,  whether 
the  act  of  limifiitions  runs  fiom  the  date  of  each  article 
in  tlio  account,  or  from  the  date  of  the  last  article  only. 

Et  per  curiam,  the  act  runs  from  the  dale  of  the  iast^ 
article  in  'he  account  only,  where  the  account  has  been 
running  on  from  its  first  cummencemeut ;  but  where  it 
is  once  deserted  or  ended  between  the  parties,  then  from 
that  time.  Verdict  was  found  accordingly,  and  the 
PlaintilT  had  judgment. 

tiorn.— Vide  JCimboUy.  Person's  Adm'rs.  2  flay.  394.  2  Sound. 
127,  note  6  &  7. 

Administrators  of  Hostler.  Assignee,  v.  Patterson  and 
others.  Sureties  of  Mclvcr,  late  Sheriff. 

The  Sheriff  had  returned  to  an  execution,  that  be  had 
levied  monies  thereupon  to  the  amount  of  j£l57,  8s.  4d. 
and  now  the  q.iestion  was  hou  judgment  should  be  taken 
— wliethei'  ffir  the  penally  of  tht  Sheriff's  bond,  to  be 
discharged  by  tJie  j^ayioent  of  the^l57;  »s,  4d,  andcosts. 


Haywood's  repokts.  347 

or  simply  for  tliat  sum  not  ip,a;anii-  j»  the  penalty  ;  and  Apr.i795. 
at  length  it  was  entered  up  Cuv  £15",  8s.  4(1. — o tie  of  the  "■■^"^"'~'*^ 
.Tudgcs  ag^recinjy  thereto,  relnclanter.     See  1777,  c.  8.  s. ". 

NoTK. — Tlie  practice  now  is  to  enter  ii|i  judgment  fur  the  penalty 
of  the  bond,  to  be  discharged  by  the  pay  mcnt  of  the  real  damages  ai- 
sessed  by  the  jury. 

V.  Administrators  of  Richard  Kcnon. 

The  objection  that  a  joint  obligor  is  not  sued,  must  be  made  by  pleii 
in  abatement  at  tin;  pcoper  lime  :  it  caniiol  he  made  at  the  trial  of 
the  cause.  Such  a  plea  cannot  be  made  at  all  since  ihp  act  of  1789, 
Jlev.  c.  314,  s.  4. 

Debt,  noil  est  factum,  payment  and  set  off  pleaded  ;  and 
upon  the  prodiicli-.in  ot  ilii.  bond,  it  was  objected  that  tiie' 
other  obli,a;of  t^tincd  in  the  lioi;(l,  i."  alive  and  nut  sued. 
Per  curiam,  ti,  Defend  iiC  oiii^ht  to  have  pleaded  that  in 
abatement,  'f  lie  supposed  it  would  have  been  of  any  ad- 
vantai^e  lo  him  ;  for  by  pleadini^  over  to  the  acli'in,  he 
iias  admitted  himself  to  be  a  lawful  Defendant  Where- 
cver  a  plea  is  ple^tdcd,  which  according  to  the  order  of 
pleading,  is  stibseqtient  toatiother  wliicti  might  have  been 
of  advantage  had  it  been  pleaded  at  tke  proper  time,  he 
thereby  wpives  the  inatler  that  Wiis  proper  to  ht  exhibi- 
ted in  tiiat  former  plea,  otherwise,  tiiere  would  lie  the 
greatest  confusion  in  triai.'^  at  law.  The  PlaintilF  would 
constantly  be  turned  lound  upon  objections  he  did  not  ex- 
pect, and  of  course  not  pitpared  to  combHt.  It  would 
also  be  prodiiciive  of  a  gnat  waste  ol  time,  wen-. the 
court  and  jury  to  take  up  every  ohjection  which  might  be 
made  throtigirevety  stage  of  the  proceeiling,  and  endea- 
vor til  ascertain  its  reality — the  ruhs  <>f  pleading  have  (21f ) 
been  formed  with  great  wisdom,  and  with  a  view  to  the 
prevention  of  tliese  inisiliiifs,  and  if  observed  the  parties 
will  never  sulfer  injustice,  at  the  same  time  that  the 
weight  of  the  whohi  (tausc  will  be  redncid  to  one  or  two 
poinis.  of  which  both  parties  are  apprized  by  the  plead 
ings.  This  obj"ciion  therefore  cannot  be  taken  upon 
these  isKiies.  GUb-  Law  Evid.  168.  Co.  Lett,  283  a.~ 
I  Rep.  tl9.  Al.o,  this  ob jet  (ion  is  not  go'id  for  another 
reason.  1789.  c.  5T,  directs  thiit  in  all  cases  of  jnint  ob- 
ligations or  assiiitip  ions  ol  co  pii-ineis  <ir  others,  enter- 
ed into  after  the  passing  of  lh.it  act,  miglu  br  sued  upon 
in  (he  snine  mantier  as  if  they  wore  joint  and  sereral,  and 


248  uaywood's  reports. 

Apr  1795.  tiiis  is  a  joint  oblisatiim  eiiteretJ  into  after  the  paas'mgof 
'*^~'^^^^  that  act.     The  I'laiiitiff  had  a  veidin  and  juil.:;n>e,iit. 

Note.  Upon  the  first  point  see  1  Sound.  291,  not;  s.  As  lo  the 
olli  r  i)Oini  st-e  note  to  Brown,  Cainjibell  U  Co.  v.  Clari/  ii  Craig', 
.idm'rs.  ante  107. 

John  Winslow  r.  Lewis  Biuom. 

In  an  action  of  covenant  for  a  certain  sum  in  silver  or  Spanisli  milled 
dutUrs,  the  jury  art  at  liuerly  to  give  (he  real  valuff  in  our  currency 
as  damages,  notwiilist&nding  the  act  of  1783,  I{ev.  e.  187. 

Covenant — and  covenants  performed  iileaded.  The 
covenant  was  for  the  payment  of  foiir  hundred  and  fiflj- 
tWD  dollars  (^sii\er  or  Spanish  milled)  on  or  before  the 
fii-st  of  Ainil,  1794.  Evidence  was  oUen-d  of  the  value 
of  the.ie  dollars,  when  exchangtd  into  current  money  of 
tiiis  Statti.  Tliis  was  strongly  objected  to,  on  the  otlier 
side,  who  insisted  that  the  value  of  Spanish  dollars  was 
already  settled  by  1783,  c.  +,  s.  2.  Per  curiam,  the  evi- 
dence is  proper,  and  ought  to  be  received.  This 
is  an  action  of  covenant — the  jury  are  at  liberty  to  give 
such  damages  as  will  do  complete  justice  between  the 
parties. 

Note.— Tlje  act  of  1783  declares  at  wbat  rate  tlie  foreign   coins 
there  menlioned,  shall  be  eslimated  m  our  currency — a  currency  at 
tlut  time  only  imagi'^ary  ;  we  had  no  circulating  medium  of  any  kind: 
since  ihut  lime  h  pn|)ei-  money  hath  been  emitted,   which  also  refers 
as  to  its  value  to  this  imai^inary  cunvncy,  ttie  value  ol  wliich  lsfixcd> 
but  only  ubcertiinable  by  a  comparison  with  the  coined  money  «t  other 
nations.     Oar  bills  of  credit,  whc  n  issued,  w  re  inteu  ^ed  <o  be  a  per- 
fect representation  of  ttie  v:<lue  of  tliib  iiiiaRiT.e<l  currency  ;  that  is  to 
say,  eight  shillings  of  ihese  bills  wis  miended  to  repr.scnt   eight 
shillings  of  our  currency,  which  by  law    was  equal  lo  one   Spanish 
dollar;  but  these  bills  of  credit,  contrary  to  the  expectation  of  ttie 
Legislature,  depr<;c  ate  .  immediately,  :ind  failed  to  answer   the  pur- 
pose exj^iecivii  irom  them — eight  shillings  ot  these  bills  did  not  in  fact 
represent  eight  shillings  ot  our  cunencv      The   Legislature  however 
built  upon  the  cxpt-ctatioii,  that  tliesi  bilisoi  credit  would  completely 
represent  the  same  sum  iii  our  cmr -ncv  as  tliSy  were  issued  for,  and 
in  that  belief  directed  it  lo  be  a  t-ndrr  in  payment  of  debts — thus  tar 
the  law  is  posilive,  and  must  be  obeyed  ;  and  therefore  il  on  tue  day 
ol  p.iymeni,  the  obhgc.r  or  debtor  will  tender,  twenty  shdlnigs  for 
insiunce  of  these  bills,  in  discharge  01  a  real  debt  ot  t>kenly  shillings 
in  tiie  curreiicv  of  North-Caroima,  or  two  and  a  half  dollars,  the  credi- 
tor must  eillii  i  ri.ceive  i»,  if  the  tender  be  made  with  all  proper  cir- 
.     cunuitances,  or  forego  his  ipterests  and  costs.     This  is  :in   injustice 
(.218)     which  rtsuils  from  the  positive  directions  of  tlic  act,  though  it  was 
not  foreseen  at  the  time  when  the  act  p>ssed— but  tbeiu  is  no  part  of 
the  act  that  say&  the  court  in  giving  judgment  may  nut  take  notice 


Haywood's  reports.  34.9 

of  the  depreciation,  and  that  the  judgment  is  to  be  discharged  in  a  Apr,  1795. 
currency  degrided  below  its  intended  v:due — neillier  is  there  any  s^^'V^y 
law  which  says,  the  court  shall  not  increase  ihe  quantum  of  this  de- 
graded currency  in  tlie  judgment  they  give,  till  it  l)econies  t-qual  to 
that  value  whicli  is  represenled  by  those  four  liumlri'd  nnd  fifty-two 
dollirg.  And  where  the  court  is  not  tied  down  by  the  express  and 
positive  directions  of  the  Legislature,  the  inesuniption  is,  that  the 
Legislature  intemled  they  shoulil  act  so  as  to  alialp.  tlie  real  justice  of 
the  case  before  them.  'I'he  true  meaning  of  the  act  was,  hat  one 
Spanisli  milled  dollar  should  not  He  deemed  to  be  of  gr.  atcr  valae 
than  eight  shillings  of  our  currency  as  estimated  iih'-ii  ami  l)efore  the 
act  passed;  not  that  it  shall  be  equal  to  eight  siiilliiigs  of  paper 
money  afterwards  to  be  issued,  and  which  would  depreciate  below  its 
intended  Value.  The  many  disputes  that  hav  ■  arisen  relative  to  the  ■ 
paper  money  now  circulating,  seem  to  have  originated  from  part  of 
an  act  of  tlie  same  session,  declaring  twenty  snillings  of  this  money 
t-o  be  equal  to  two  and  an  half  Sp mish  dollars,  ami  that  it  sliould  be 
a  tender  after  that  rate — hence  it  hath  been  interred,  ihat  a-  twenty 
shillings  of  this  muney,  is  equal  to  two  an.  I  an  half  dollars,  and  these 
equd  to  twenty  shillings  of  the  currency  o(  Norili-Carolina,  -s  esli- 
iDHied  at  and  before  the  session  of  1~83,  that  therefore  each  of  them 
is  equal  to  the  otnir;  and  that  is  mathematically  true,  vet  if  two 
things  are  only  equal  to  a  third  in  some  respects,  and  not  in  others,  it 
cannot  be  affirmed  that  they  are  equal  generally,  20s.  of  V'e  currencj' 
of  Hor'h  Carolina,  were  it  in  silver,,  coined  by  authority,  would  be  a 
tender  in  dischaige  of  a  debt  of  2  &  ^  Spanish  dollars,  and  as  a  bill  of 
20s.  of  the  paper  money  now  circul  tng,  would  also  he  a  tender  in 
dischaige  of  2  &  4  Spanish  dollars — it  follows,  th  n  as  to  tlie  purposes 
of  atri  <ler  they  ate  equal,  and  have  equal  effects  and  coiist^quences  ; 
bttt  if  we  speak  of  value  as  tippljed  to  the  assesstnent  of  damasjes^,the 
case  IS  far  otherwise.  One  Spanish  dollar  is  represcit^^d  by  10s.  of 
our  paper  money,  and  this  dollar  by  1783,  c.  4,  ri-piesenta  8s.  of  out 
currency  as  estimated  at  and  before  that  session,  and  cons' quenlly 
was  w1ial  Was  referred  to  by  that  act  ,-  and  then  ajirily  the  ruie  inove- 
mentioned,  and  it  will  make  both  the  dollar  ami  eight  shillings  of  our 
Cttnency,  equaltotenshillingsofthe  papermoiiey  :  and  thus  liie  law  of 
1783  has  no  iiifluenca  upon  the  suoject  of  assessing  damage  by  a 
jury.  It  only  operates  in  the  cast-  expressly  pointed  out  by  th'  act, 
where  the  debtor  has  made  a  tender  ;  and  then  is  ■•  ly  op.-rative 
whei  the  tetnler  s  made  and  pleaded,  hits  omnibus  concnrrentibxts 
guit  in  jure  reguirwitur.  As  therefore  the  court  and  jury  are  ii  ■.  tied 
down  '>y  the  act  to  any  positive  rule  with  respect  to  tie  assessment 
of  damages,  they  should  always  be  careful  that  the  creililor  shall  have  so 
much  jf  the  paper  monev  as  represents  the  real  value  .it  tlie  contract 
sued  U|ioii.  This  answers  the  true  meaning  of  the  Legislature,  which 
in  former  instances  being  misunderstood,  hath  exposed  tUem  to  the 
imputation  of  enticing  the  citizens  to  the  di»ciiarge  of  tbeirdebts  with 
a  legs  value  than  they  engaged  to  pay  ;  tiian  which  nothing  was  ev4T 
more  untrue,  nor  any  imputation  more  unmerited. 

NoTB. — Vide  Anonymous,  past  3S4. 


250  lIArWOOD's  REPORTS'. 

AJjr.  1795. 

-^"^■''^-^  Parker  t».  Stepliens. 

When  an  executor  omits  to  plead  "  no  assets,"  it  is  an  admission  of 
assets  which  he  can  nevtr  «fterwanls  cnntrovert:  and  in  siicli  case, 
the  pio[..  r  jiulirment  is,  thai  ilie  principal  sum  rec.  vered  bp  levied 
de  boms  tfstatons  in  the  hands  of  the  executor,  and  the  ci  sts  (k  bonit 
propriis  :  itni\  upon  the  relun  of  the  SherifTihat  there  arc  n'.  K'""'* 
of  the  deceased  in  the  hands  of  the  executor,  then  a  set.  fa.  issues 
to  the  exi'cutir  to  shew  canse  why  the  execution  for  the  principal 
should  not  be  levied  de  bonia  p< opriis. 

Videpoat     The  Phiintiff  had  broiiglit  an  action  a^Hinst  tlip  Dcfen- 

•298.  darit,  as  adtniiiisti-ator  of  Charles  Stephens,  deceased  :  to 

wliicli  tlip  Defendaiif  ap|>eai-rd  and  pleaded  flie   genera! 

issue,  art  of  ruDit^itiotis',  a  foriner  recovery,  and  set  off. 

(219)  AH  wliidi  plejts  were  fmind  against  him,  and  damages 
asses-.rd  to  ninety  pmiiKls  f:>iir  sliiliings,  and  costs  to  six- 
pence: and  there  was  a  judgment  against  him,  to  be  le- 
vied de  bonis  tesfatoris  ;  AJi,  fa.  issued,  and  tlic  Sheriff 
returned  then  upon,  that  there  was  not  any  property  of 
the  intestate's  to  be  fonnd — and  ujion  this  ri'tiiin,  the 
Plaintiff  took  out  a  sd  fa.  for  liie  Defendant,  <o  show 
cause  why  the  Plaintiff  should  not  have  jmlgment  to  be' 
levied  de  bonis  pmjmis  This  cause  now  came  on  to  be 
argued  :  it  w:is  argued  on  the  part  of  tlie  Delemlant, 
tlint  this  sci.  fa.  is  irregular  and  improper,  for  that  the 
first  jiidgnieit  should  have  been  de  bonis  testatoris  si,  ct 
si  non  de  bonis  propriis,  and  that  not  being  so,  it  was  er- 
roneous ;  .itid  thrtt  the  court  wenild  not  now  help  the 
Plaintiff  in  this  havd  case,  where  the  attempt  is  to  subject 
the  Delendant's  goods  snerely  for  his  mispleading,  or  for 
his  ignorance  of  the  rules  of  (tleading,  wheti  perhaps  \\iQ 
fact  may  tie,  that  he  hath  not  any  of  the  goods  of  liie  in- 
testate in  his  possession  nor  ever  had. 

Per  ciiriam  :  We  must  not  depart  from  the  settled  rules 
of  law-  to  iivoid  an  inconvenience  in  a  particular  case. — 
It-is  belter  fi*<'  the  initi\iihial  to  sAffer  that  inconvenience, 
tha«  tliat  th'  public. should  suffer  a  general  mischief,  by 
h«  V.'  the  rules  of  law  rendered  arbitrary  and  uncertain. 
Th^  ■■■c  !.f  law  is  i^ell  known,  that  an  omissitui  on  fhr; 
par:  ufdie  ixecutor  ir  .idinitiistrator,  to  plead  want  of 
as.-  ts,  is  a  ciHifessioii  of  I. em,  so  that  he  can  never  af- 
tee^ards  b.  p'rmiited  to  say  he  had  no  a  sets  to  satisfy 
that  ^.-'isaMd.  The  pinper  judgment  in  such  case,  is,  to 
he  levied  debonis  testatoris;  for  the  law  will  iiut  prcsiinic 


HAYWOOp^S   REPORTS.  251 

tlicre  are  no  assets,  when  a<lmi'tcd  by  the  executor  that  ^p'^-^''^^ 
there  are,  luifil  it  shall  aiipciir  upon  the  i-vtuni  "f  the  of-  ^■^~'^^*-^ 
ficer.  Godd.  199,  sec.  7  aurl  8.  Th'-  ro^its  of  fh-  first 
judgment  aic  to  he  levied  de  bonis  propriis.  heiaiise,  ha- 
ving assets  of  the  direased  in  his  h^imls,  he  onght  ihere- 
witii  to  have  satisfied  'he  debt,  and  not  have  incurred  the 
costs  of  a  suit ;  wiiicli  as  tiie.v  must  necessarily  be  paid  by 
some  one,  now  the  suit  has  been  coniimnced,  are  justly 
charged  iipi>n  him  who  hath  occasioned  them,  and  not  on 
the  estate  of  the  intestate  :  and  therefoic  in  such  case  the 
true  method  of  entering  the  jnd.a;ment  is  this,  the  princi- 
pal to  be  levied  de  bonis  lestatoris,  and  the  costs  amount- 
ing to  so  much,  to  be  levied  de  bonis  propriis.  And,  tlie 
judgment  to  have  execution  de  bonis  propriis  for  the  priii- 
ci|)al,  is  always  a  subsequent  juilginent,  f'oundoil  upon  the 
scifu.  This  judgment  was  tiierefoie  well  cnleied,  a>id 
this  scLfa.  well  brought  upon  tlie  return  the  SheritFlialh  (220) 
made,  and  the  Plainliff  must  have  judgment  accoiding  to 
the  sci.  fa. — And  he  had  judgment  accoiditigly.  Vide 
Office  Exec.  165  to  172. 

NoTK. — In  several  cases  like  the  prcst-iit,  after  llie  return  of  a  fiulUi 
hanahy  tlie  Slier'ift',  tin-  cuiirt  permi'ied  a  special  /i  fa.  to  issue 
(^Hogg's  Ex'rs.  V.  White's  .idm'ra.  post  298.  Buruside  v  Greenaide.  2 
Hay.  112.  Mston  v.  Harris's  Ex'rs.  Ibid  125  )  but  tlie  case  of  Hun- 
ter V.  Hunter's  Jldni'rs.  N-  C  Term  Htp.  122,  i!i-ci'les  tl.at  llie  special 
Ji.fa.  is  improper,  and  thai  a  sci.  fa.  or  Jiii/t  (ora  devastavit  is  the  only 
projier  course.     See  1  Sound.  219,  note  8.    Toller's  Law  of  Ex'rs.  469. 

James  Ritchie  v.  Duncan  McAiislin. 

Administration  granted  when  tlie  next  of  kin  sre  out  of  tlie  rounlrv 
should  be  durante  absentia  .•  if  otherwise  it  is  er,  or.tous.  Tlie  next 
of  kin  in  another  country  may  appoint  a  person  lo  lake  .the  iidiiiin. 
i3tr:ition  here.  The  court  should  not  grant  Utters  to  a  person  not 
designate  1  in  the  act,  before  the  persons  designated  have  r  fused. 
The  Supir.or  Court  will  repeal  the  letters  wlieu  imptoper!)  gran'ed, 
and  make  an  order  for  the  County  Court  to  grant  th*m  tci  the  propei- 
person.     Quere  whether  it  should  not  have  been  a  mandamus. 

Petition,  to  rescind  letters  of  atlministration,  jjranted 
by  tlie  County  Court  of  Cumberlaml  to  the  D<  f'-'tlant, 
of  the  estate  and  effects  i)(  JJulcy  JMcJ^aui^htou,  (hreitsed, 
in  July  Term.  1792.  The  next  nf  kii>  be)"'"'  ^*"'-  since 
that  time,  h.i\e  appointeti  Hie  petiti.mer  tn  :t(i|il>  (••<■  fhe 
adniinistf  \tion  us  their  agent  ami  trustee.  H''  exiibited 
this  peti'inn  lo  tlie  contity  coiiri,  who  ret'useil  to  lepeal 
the  former  letters;  and  thereupon  th'-  peliiinmr  appeal- 
ed to  tiiis  court.    He  had  a  similar  appointment  also  from 


252  Haywood's  reports, 

Apr.  1795.  ff^iiiie  Ervin  McClay,  trustee  of  the  sequestrated  eitatc  of" 
'"^'^'^^^^  the  survivine;  partners  n(  ^uUy  JUcJVaughton  and  Co.  in 
Scotland. 

Per  curiam,  Adminisfiatitm  wlieii  gianted,  if  (lip  next 
of  kin  are  infants,  should  be  jjraiited  durante  minoritale  ; 
if  beyond  sea,  or  oui  of  the  cooniry,  durante  absentia  ; 
and  if  otherwise  jjrnnted,  it  is  eironeous.  Whpie  ti»c 
next  'if  kin  reside  in  a  foreign  country,  and  ratinol  per- 
sonally attend  to  take  the  administration  themselves, 
they  may  sippnini  a  person  in  wliom  they  have  confidence 
to  take  it  tor  them  ;  and  the  roint  oiiglit  to  grant  the  ad- 
ministration to  th»ir  appointee.  Tlie  court  ha»e  not  ex- 
ecuted the  power  the  law  .cjives  them,  when  they  have 
.e:ranted  li-ltprsto  a  person  not  de>.i.irnated  in  that  act,  be- 
fore thepi'rs'ins  designated  have  refused  :  hut  only  where 
they  have  granted  letteis  to  the  proper  persons  :  when 
they  have  granted  letters  to  inipro|iei  persons,  they  may 
repeal  them,  and  ought  to  d">  so,  a'  the  application  of  the 
persons  properly  entitled.  1  Cro.  469.  '  Rep.  18.— 
The  coMseqiience  i«,  that  the  letters  in  the  present  case, 
having  been  improperly  granted  to  the  Defi  ndiuit,  to  the 
prejudice  of  the  next  of  kin  in  Europe,  should  he  repeal- 
ed, and  granted  tt»  'heir  ap|)ointce.  H.  Bl.  Itep.  152.— 
This  was  ordered  accordingly,  and  an  oiderof  this  court 
was  made  for  the  County  court  to  grant  letters  accord- 
ingly. 

Huoere,  if  it  should  nut  have  been  a  mandamus — for  if 
they  II  fuse  to  comply  with  this  ordi  r,  how  arc  they  to  be 
brought  under  the  penalty  of  a  contemjit  committed  to- 
wards this  coui't. 

The  court  further  said,  that  they  did  not  regard  the 
appointment  of  the  trustee  of  the  sequestrated  estate  of  the 
survivors,  because  the  survivors  were  entitled  to  all  the 
joint  stock  in  trade,  until  the  net  balance  was  ascertain- 
ed ;   and  as  to  that,  the  power  of  the  administrator  com- 

(QZi)    nje'ifcd.  after  the  business  of  the  survivr>rs  was  finished  ; 

^  and  besides  the  administration  would  extend  to  such  of  the 

effects  of  the  deceaseil,  as  were  not  a  pnrt  of  the  joint 
stock,  and  the  survivors  ( ould  have  nothing  to  do  with 
that,  and  the  trustee  stands  only  in  their  place. 

Note.— rt«fe  Cflfttey  v.  fVebb,  1  Car.  Law.  Bep.  247.  S.  C.  2 
Murph.  268, 


havwood's  report^.  253 

Apr.  1793- 
Ini^ratn  v.  Lanier.     ,  v,-^-v->»' 

Where  a  person  concf  rned  in  interest  is  st;iled  in  the  bill  to  be  moved 
away  and  not  since  heard  of  for  many  y<a'S,  so  that  he  cannot  be 
served  with  pr  cess,  th.it  shall  lie  .  good  leasnn  as  between  third 
persons  for  not  making  him  a  party  ;  and  th<-  (ourt  Wrll  proceed  to 
a  htarinp  notwitlist'inding.     Wlien  the  cii'.rt  feels  any  doubt  about 

■  decidinff  upon  a  plea,  it  can  overrule  it,  and  suffer  the  llefendant 
to  insist  upon  the  same  in  his  answer. 

'Jhis  was  a  petition  under  the  act  of  1762,  c.  5,  s.  23, 
statins  that  the  pciiiioner  is  the  brotluM-  uf  Peter  Lewis, 
tleceased,  who  died  possessed  of  an  estate,  leaving  a  wife, 
who  had  moved  away  and  h;'d  not  been  since  Iieai-d  of, 
30  as  to  be  served  with  procesfi  :  that  lie  was  the  only 
next  of  kill  of  the  deceased;  that  Lanier  liad  procured 
letters  of  administration  upon  the  pcrsoiiHl  estate  of  the 
deceased,  and  had  [icsse-sed  himself  thereof,  and  would 
not  account  for  the  same,  and  deliver  it  or  iiis  share 
(hereof  to  the  petitioner. 

There  was  a  demurrer  to  this  pelition,  for  timt  the 
wife  of  the  deceased  was  entitled  to  a  indieiy  of  tlie  per- 
sonal estate,  and  was  net  madi-  a  |i;tit_v  :  there  was  hIso 
a  (ilea  that  smeti  years  had  elapsed  sitice  the  death  of  the 
intestate,  vhiieby  the  church  wardens  became  entitled 
under  the  act  of  1715.  c.  48,  s.  9. 

Per  curiam,  after  hearins;  the  arsinment,  hs  to  the  first 
point,  when  a  peison  concerned  in  inierest,  is  slated  iij 
the  bill  to  be  remnvet!  to  a  foreiijn  country,  or  to  be 
moved  away  and  not  since  heard  of  after  many  yeais,  so 
that  he  cannot  be  served  with  process,  that  sSiall  he  a 
s;ootl  reason  as  between  third  )jersr)ns  f»r  not  makin_ef 
him  a  party,  and  tjie  court  will  proceed  to  a  hearing 
notwithstanding.  Hei',  that  is  sliiteil  in  the  petition  as 
a  re.ison  for  not  making  her  a  party.     2  Mk.  510. 

As  to  the  rtther  matter,  the  old  law  is  alttreil  by  the 
act  of  1784,  c.  23,  by  «hich  all  the  estate  of  he  de- 
ceased, not  claimed,  is  to  be  deposited  in  the  tieai-niy, 
subject  to  the  claim  of  creditois,  and  the  lawful  icpie* 
sentative  of  such  decedent.  However  as  seven  jears  may 
have  expired  before  the  passing  of  this  latter  act,  in 
which  case  it  may  he  doubled  whether  tin-  firs'  oi  latter 
law  is  to  govern  this  r.ise — let  ih^  demurrer  and  plea  be 
overiiiled,  and  the  Defendant  be  at  liberty  It)  insist  upon 
the  limitation  of  lime  in  his  answer. 


HAYWOOD  S  RUPOBTS. 


State  r.- 


T^ie  Court  cnniiot  order  the  Slate  to  pay  costs  as  a  condiiioii  o(  ger- 
tiiig  u  cuntinuance,  nor  indeed,  it  seems,  in  any  casi-. 

There  were  several  actions  (if  dctimic  tluil  liail  been 
a2)|iiiinteil  t»  be  tried  on  ibis  ilay.  Friday,  tin"  30th  oC  A- 
(22'i)  j»ril.  A  inoliiin  was  inadf  on  beh.ilt  of  the  State,  for  a 
continuanrc  of  them  nil,  npon  tlic  ,u;i'(Hiiid  tliat  since  tlie 
ooiiMDcnceinrnt  of  the  present  term,  and  never  bifii^,  it 
had  been  disro^ered  there  was  a  piece  of  tcsiiiii'niyex- 
treiinlj  materiHl,  which  might  be  procured  by  the  next 
term — and  (ipon  ttiis  grnuiid,  tlie  court  were  of  opinion 
the  rau-es  should  be  continurd — but  they  said,  if  it  were 
in  their  powi  r  to  order  it,  the  State  should  p.  y  costs 
agreeably  to  the  an  of  I7r9,  c.  4,  s.  5. — Whereupon, 
Mr.  Moore  insisted,  tliat  during  the  whole  of  tliis  term, 
where  the  p.irty  moving  for  a  eoniimiance  had  lieen  guil- 
ty of  any  ilie  least  neglert,  though  it  might  not  be  so 
great  as  lo  oxerturn  hin  excuse  for  not  lieing  ready,  the 
payment  of  the  costs  of  the  term  had  been  niiulc  a  condi- 
tion of  his  obiaining  the  rontinuanre,  and  tliore  could  be 
no  good  reason  why  the  State  should  recei\c  more  fa\or 
or  indulgence  than  an  individual,  since  justice  was  the  on- 
ly object  iif  the  court.  If  it  .was  just  to  compel  an  indi- 
vidual niider  certain  circumstances  to  pay  costs,  it  was 
equally  just,  that  the  State,  undet  the  same  or  the  like 
circum-'iances,  sbimld  also,  tie  compelled  to  pay  costs  : 
and  as  for  the  doubt  of  ibe  court  that  tliey  could  no'  pass 
an  order  to  compel  the  Stale,  he  would  observe,  lliat  in 
the  case  of 'he  State  \.  Talovi,  determined  at  Hillsbo- 
rough, on  the  lasfcircuit,  the  court  allowed  a  set  off  in 
favor  of  'hi'  Defendant,  which  is  in  lieu  nf  an  action 
against  the  Slate  :  and  he  trusted  if  an  order  was  made, 
purporting  it  to  be  the  npioion  of  the  court  thai  the  State 
ought  to  pay  costs,  Ihat  there  was  magnanimit>  and  jus- 
ticc  enough  in  ihe  sovereign  legislative  body  of  the  coun- 
try, to  (111  voluntarily  what  justice  required. 

Per  Curiam,  we  cannot  j)ass  any  effectual  order  or 
judgment  against  the  Slate — neither  is  tliere  any  in- 
stance of  a  court  sayieg  to  a  sovereign  body,  they  ought 
to  do  thus  or  tlitis  :  for  us  to  pass  an  order  wiihoiit  hiij 
prerediiit,  and  which  it  would  be  opiional  in  them  upon 
vhoni  it  was  intended  to  operate,  either  to  comply  with 


iIA.YWOOD's  KEPOnTS.  255 

or  not,  would  Ito  (o  place  ourselves  in  a  r'iiliciilous  pninf  of  Ap:"- 1'^?- 
view.     Wo  have  no  [kiwci-  to  make  sucli  an  order.     Et'-''''''^*^ 
per  one  of  flic  Jud'^cs — I  was  suipi'ized  iif  tiie  adjudica- 
tion at  liilisborougli,  which  has   been   cited   at  the    bar, 
when  it  took  place.      I  nrj^iied  titat  cause  on  (lie  part   of 
the  Slate,  and  I  could  recollec  t  no  case  like  it  that  I  ever 
had  read  or  heard  of.     I  have  tlioii:;ht  mu(h  of  it   since, 
and  lo:!k(  i!  much  into  the  anllioritics.     Tlie   practice   of 
set-ofTn  is  founded  upon  a  statute,  and  were  it  not  for  tiiat, 
a  sri-o(f  could  not   he    allovvable  :  it  therefore  can   ex- 
tend no  further    than  tlie  true  spirit  of  the   act   will  ad-    /-of,-., 
iiiit — that  was  to  diminish  the  number  of  law  stiits  and    ^  '^^^ 
cxpencc  ro  the  parties.     It  int'ended,  where   two   jjartics 
had  ieci|)roc;tI  di-maiid>;,  that  the    Defendant    instead    of 
suin.!^.  mit^hl  plead  iiis  demand  of  equal  or  greater  value 
ill  liar  ;  if  of  less  value.  mi,s;litset  it  c)frnpoti  notice  given. 
Dy  this  means  he  had  justice  more  easily   done,  and  at 
much  less  expence  than  when  boili  parties  were   to   sue 

reciprocally.       Paynter  v.    Walker.     C.  B.  Easter  4 

Geo.  III.  nnUcr  179.  1  Tf'ils.  155.  Cowp.-\35,  135. 
It  follows  from  het.ce,  that  a  Defend  int  cannot  set  off, 
but  in  a  case  where  he  might  sue  the  PI. lintiff  if  he  thought 
proper.  This  was  certainly  the  true  meaning  of  the  act 
of  1756.  c.  4,  s.  7,  and  as  the  case  cited  was  hmught  on 
suddenH,  on  a  motion  on  the  part  of  the  State  for  judg- 
ment, and  determined  suddenly,  without  time  taken  to 
considei-,  and  as  it  was  against  the  current  of  authoi'i- 
ties,  it  was  in>proper  perhajis  to  cite  it  as  a  precedent, 
before  it  should  be  corrohoiated  by  some  concurrent  de- 
cision, or  by  some  case  adjudged  upon  consideration. — 
One  of  ih<'  reasons  given  for  the  decision  in  that  case 
was,  that  the  Defendant  could  not  sue  the  S'ate  ;  and 
that  was  tlie  strongest  reason  that  coulil  be  offered,  to 
prt)ve  he  should  he  allosved  to  set  off  his  desnand.  'J'ho 
rircumstame  i.f  the  j)raiiice  of  set-"tfs  being  introduced 
by,  and  beinsr  ilependant  on  an  art  of  Assembly,  was  not 
at  all  attended  to.  But  the  practice  was  treated  as  an 
erpiitabli^  practice  founded  on  the  common  low,  or  in  reason 
and  propriety  only  :  l)esides,  it  dues  i»ot  follow,  that  be- 
cause the  paity  cannot  set  off,  he  cannot  obtain  justice 
from  the  public — tlie  Legislatuie  will  sui  N  have  mag-  * 
nanimit)  and  jusfirc  enough  to  pay  tiic  parly  his  just 
demand,  upon  a  proper  application.  Tba.  case  cited 
•herefore  is  to  be  doid)ted  of. 


i5t>  JIAYWOOU'S    UBPOBTS,' 

Apr.  1795- 

^'^'''<'^*-/  Ueii,  on  tlie  demise  of  Wilcocks,  v. 

There  were  several  e.j<'Ctment  siiiti  brought  against  tiie 
inhabitHiits  of  a  pait  (if  the  town  of  Fayrtteville.  for  rc- 
covei-in:;;  tin-  re-^pi-rtive  lots  of  land  on  which  they  were 
respectively  scttlid  ;  and  the  issue  of  tlif  miitesi  depend- 
ed solely  upon  Oic  asrertainincnt  of  an  old  line  of  a  tract 
of  land  oC  one  thousand  acres  which  lay  adjuining  to  the 
town,  the  Fiainliff  alleging  that  tliese  lots  were  within 
that  line,  and  the  Defendanls  that  they  were  wilhuut. — 
A  surveyor  atid  Jury  were  appointed  t<»  survey  and  v,iew 
the  land — and  the  <irder  for  a  survey  and  Jury  was  made 
(^224)  in  each  of  tiie  causes  ;  and  at  this  term,  the  survey  being 
not  ciimpletcd  on  the  day  on  wliich  the  causes  were  cal- 
led fir  trial,  a  continuance  was  moved  for  on  the  part  of 
the  Oefcndants,  and  granted  upon  the  terms  of  their  pay- 
ing the  costs  of  this  term,  according  to  the  act  of  1779, 
c.  4,  s.  5,  whereupiin  it  bec  ime  a  question  whetlier  each 
Defendant  should  pay  the  a  hole  of  the  xpenses  ol  the  ju- 
ry and  surveyor,  or  whiiher  the  Jury  and  surveyor  should 
be  allowed  as  for  oio-  cause  only.  It  being  alleged,  that 
although  there  were  several  cases  depending  upun  the  as- 
certainment of  this  line,  yet  tlie  surveyor  <ind  Jury  had 
but  the  Same  trouble  and  labor  as  if  there  was  only  one 
cause  ;  and  that  one  ruoiiing  of  the  line  of  the  one  thou- 
sand acre  trad,  au>wered  foi-  all.  The  court  took  time  to 
advise  until  Judge  AI\cay  could  searcli  the  record  at  Sa- 
lisbury in  the  suit  of  PuceLy  and  others,  where  tlie  same 
question  had  been  decided. 

NoTB. — It  si'ems  as  if  each  Defendant,  in  caseaverJict  went  against 
liini,  should  |)ay  ilie  whole  Costs  nf  the  '■urveyor. .  I'he  lini-  niii-.t  be 
platted  tor  each,  in  the  survey  return*  I  for  liia  cause  :  also,  e.ich  De- 
fendant's \«'.  mu  t  l>e  viewed  tni  plaut:'!  (o  aliew  its  siluaiion  relative 
to  th  ling  line.  Won  respeci  to  the  jurors  lln-ir  tiiiour  is  over 
when  llie  lines  are  oiic>-  run  and  vi'W  d  When  thi\  an  vk  wing 
the  loni;  line,  that  is  a  scrvcc  for  tlie  Defendmiis  jointly  ;  bui  when 
ihey  are  viewing  the  lo's,  thit  is  for  e.,cli  Dvteiidant  singly;  i<nd  if 
they  like  up  sevtr.il  diys  in  doing  ihis.the  lois  first  viewed  ;in:l  passed 
by,  should  not  contribute  to  the  expcnsis  ol  t  .c  lots  noi  yt-t  v.fwed 
—MS  to  that  pari  of  the  service  tlieretore,  it  setois,  as  if  each  I),  fen- 
dant  ouijlit  to  pay.  We  must  w.nt  however  for  a  decision  on  tlii?' 
point  to  be  ascertained  of  tiie  law. 

ynTF.—Vifle  S.  C.pmtAii. 


liAVWOOirS    UEl'OllTs.  -io< 

Apr  1795. 
,     HALtFAX,  APRIL  TERM,  1795.  v-.'-v^*^^ 

S\v6|iH0M  V.   VVlii taker. 

An  action  will  not  lie  ajrainst  llie  Sheiitt'  (or  un  escape  upon  mesne 
proccs'i :  heonglitto  be  procteded  ai^;.insl  as  bail,  iiniler  tlie  act  ot 
iTTT.Rev.  c.  115,  s  16  and  69. 

This  was  an  iictinn  fn'  an  i-srape  upon  mesne  process. 
TUv  DeCi'iidaiit  was  tlic  Shi^ritF.  and  Linton,  ilif  Drleiid- 
ant  in  a  fdinicr  action  at  tlie  suit  of  Sivepson,  was  sur- 
rcndfiod  in  cunrt  b>  his  bail,  and  (■ini'iiiiicd,  as  the 
I'laiiitiff  alh'!?ed.  lo  tin-  Shi-rift".  tlie  |)icsi'mi  Dffendant — 
Tlicie  was  tio  lec-oid  (if  ihis  cornniiinietit,  and  it  was  <»b- 
jfcied  il  could  bf-pnivi-ii  nnoiher  way,  the  sm-n'iidi-r  ba- 
\ihg  been  made  in  court.  It  was  also  objocted,  thi-it  tlio' 
an  acticiii  for  an  escape  on  mesne  |»roce>;8  will  lie  in  Eug- 
hmd.  i!  will  not  in  this  SuU'.  By  ihe  act  of  1777.  c  2, 
S.  I6  and  76,  liie  SiiciitV  arresting,  is  deemed  ■.»  bi'  \he. 
bail  iiiii'.self.  wlieie  he  does  notceiurn  bail  ;  and  by  s.  20^ 
upon  a  surrender  made  by  tlie  bail,  llie  Sheritfis  to  re- 
ceive the  body  and  bold  the  Delendinf  in  custotiy.  as  if 
hail  had  neNer  been  giviMij  now,  if  bail  had  never  been 
gi\en,  the  Slieiiirmigbt  liH\e  tliscbarged  liie  D  feodarit 
without  bail,  and  ihrroby  lia\e  beeouie  bail  hiniseif,  or  (225) 
he  inigiii  have  coininitied  liini  tn  prison.  I'lie  ciicuiii- 
btance  of  cooiniiiting  tin-  Delendani  to  prison,  canimt 
place  the  Sliei-iirin  any  worse  siiuaiion  than  he  was  in, 
after  ha*  ing  him  in  custody  and  bef  u-e  actually  commit- 
ting bill! — tlie  Difendrtiil  is  his  pisoneias  w.  II  in  the  one 
^•,ase  as  in  tlic  other  j  if  tbeiefire,  bis  dis(  barging  llie 
prisoner  out  of  his  costody  beloie  an  actual  inipiisiin-, 
inent,  will  only  make  lh>'  Slniid  liable  as  bail,  by  parity 
of  reason,  his  discliargill!;  tlie  Defendant  from  an  actu- 
al iinprisomnent  will  h.ive  the  same  operation  :  the  PI  in- 
lifl'iii  the  action  is  not  inoee  injuieil  in  the  (oie  chs<  tlian 
ill  the  oilier — for  if  the  Sheriff  is  liehl  to  be  the  bail  in 
both  cases,  then,  the  Delentlanl  is  in  the  p^wer  ol  ihe 
CMuri,  and  the  Plainlilf  may  proi  red  in  liie  ai  tion —  iieii 
if  the  Slieritf  be  bail  as  well  in  tlie  one  case  a«  in  tie-  mliei', 
he  miglit  not  to  be  liable  to  an  action  for  an  e^cap'-  oa 
mesne  process,  because  in  this  action  the  SlierifTcan  on- 
ly'discbargc  himsell,  by  a  lecapii.-n  b'fore  (lie  actum 
bronght  against  him  ;  w  hcreati,  if  he  be  proceeded  against 


258  "  HAYWoon's  rkpouts. 

Sep.1795  as  bail  by  a  sc'i.fa,  lie  may,  by  s.  20.  rotako  his  prisorf- 
^''^~^'''>^  e\;  ;iii(l  siiriTii'ior  bim  to  tbo  roui'  in  (lischars:!-  '■•  liim- 
si'lf,  ill  iinj  time  bi'fiiie  (itial  jiid^iniMit  ■■fgainst  Ivi'ii — ;itnl 
ill  f.irt  tbc  DcfoiHUnt  in  tlic  |»ri'siMit  rase  did  retiilcf  Lin- 
ton H>  d  put  him  in  in-ison.  and  bad  biin  in  con't  to  aii- 
3\vii'  tJK-  Plainiift's  artioti,  if  he  would  have  proceeded 
against  liini. 

Per  curiam,  Ashe  and  Williams — Upon  th*"  last 
point.  «f  HIT  of  o|iitii(>ii,  thai  tlic  acii^in  for  an  t'siMpe 
upon  tiK'siiP  process,  will  iioi  lir  H,e;ainst  the  Sboi'if)',  in 
tliih  rasoj  bi'  oiis^lii  to  be  proceeded  asjaiiist,  as  b.iil— 
to  pioreed  against  him  in  ibis  inanner/is  to  deprive  bini 
of  inaiij  advantages.  And,  there  was  jud/djiucm  for  the 
DefcHdaiit. — Ex  relatione. 

Note. — But  if  the  SlifiifT,  to  i  writ  of  capias  ad  respondendum,  rc- 
tiirn-  I  escape,  this  neirativc  s  tlie  siipiosiimi  if  liis  li  ivei.f  ■  me 
bai  ,  oil',  (.n  action  for  th.  rscape  will  lie.  Tutun  v  Shaviffof  Wake. 
post  iSS.  Inderd  in  iichcise,  it  seems  the  only  proper  remeJy. — 
//art  V.  Lunier,  3  Hawha,  244. 


NEWBERN,  SEPTEMBER  TERM,  1795. 
Cleary  v.  Coor  and  Hawks. 

An  entry  "  referreii  in  A,  B  &  C,"  means  a  general  reference  gf  the 
cause,  nil  noi  merely  lo  audit  ..nds'aie  the  accoiinls.  The  awaril 
of  ar  itrator'i  iuikIU  nut  to  be  st  t  asiile,  unless  in  case  where  their 
deeision  Is  plainly  :ind  t^prnssly  agaiust  law  ;  not  wliere  the  point 
decided  might  be  doubtful. 

This  was  a  suit  in  Equity,  to  which  (he  Defendant 
pleaded  ;  and  afierw^d-ds.  there  was  an  entry  in  ihesc 
Words,  «'  Referred  to  A,  (J  &  C."  Upon  tins  the  re-, 
ferces  met,  and  returned  an  award — e.xreprions  were 
fij  d  on  the  pail  of  ibe  i'l<iin(in':  and  at  Ibelast  term  a  rule 
to '-hew  cause,  wby  ilie  award  sbould  not  be  cunfiiined  vias 
emeiedon  tlie  leoird.  And  now  at  this  term,  DarieUw 
the  I'laintitr,  insisted  the  referee.s  were  not  appoinied  to 
act  as  arbitrators,  but  to  state  the  account  ;  and  that 
they  liad  mistaken  tbi'ir  powers.  Per  curium,  if  the  in- 
tent liad  been  to  refer  to  them  to  audit  and  state  the  uc- 
counts,  it  would  iiave  been  so  mentioned,  especially  as 
(226)  theii'  was  a  Master  wbose  business  it  was  to  make  such 
statement :  neither  would  the  court  liavc  ordered  an  ac- 


Haywood's  reports.  259 

count  to  bfi  taken.  Ijcr<ii'p  tlie  |ilea«i  vvcre  argued  or  put  Sep.  1795. 
ti>  issin'.  mid  nil  (I.  Indeed  by  'lie  last  enhy.  lhis'>e»-(n,s  -^""'"^^ 
to  ii.t'f  lieeii  <(»iisi<lei-rd  lis  an  award  by  tin-  conii-i-l  ^in 
botli  sides,  will)  li.ivc  mt'iiiioni'd  it  ah  an  a«ard.  Davie 
tbeii  insisted,  tliat  this  awai-d  »»i^U'  to  be  sei  ..sid'  being 
against  law  ;  fn'  ih^'  the  arbilralDis  Itad  ail'W.  (1  Coor 
a  (oiisidtTHliIe  sum  Ft  I'is  sCrxiC'  s  as  ;ti(  adinnisii  .tor 
(this  was  ndniiitcil  h>  Cfwr,  no^v  preM'rt  in  r-niri.  th.l  is 
to  say.  he  a-linit  ed  llicy  :illnw.d  'en  penceiit.  m  'h  jear 
1779.  upon  the  v.ihie  of  tlic  j^onds  in  1776,  wliich  ciiiie 
to  aln)iii  afi  half pgr  cent,  or  ten  shi|liii.cs  on  the  real 
value)  and  he  rited  Bl.  Rep  363.     3  dik   494. 

The  conrt  took  'ime  ii  cmi-ide-,  and  having-  had 
befoie  thciii,  1  ^tk.  'M.  Jacob.  V'-rho  Jrbitraturs.  2 
Broivn70\.  I  Brown  271.  1  SI  ra.  COl.  Sulk- 7  \.  pi. 
4 — 83.  pi.  1.  ih'  }  next  n»  i|-nin;i  derided,  tlmt  llic  a\v  ;id 
of  ai'liiieatiit's  oui^lit.  not  t'  be  set  aside,  unless  iii  c  ises 
vvb(  i-e  their  deci^iinii  is  |diiinly  and  jcro'^sh  agains  law 
— iioi  where  the  pnint  deeided  might  lie  doiibil'iil.  In 
tiie  prtsent  case,  altliotigh  no  snrb  alliwanrr  oiighf  to  he 
made  hy  tlie  strict  i  uies  of  law,  tli.it  is  a  point  not  uni- 
versally known  and  clear;  hut  the  conlrMry  ispractised 
in  -.ilninst  ail  the  County  Courts  in  this  State,  ih.i'  is  to  \ 
say.  the  Conniy  C"urts  generally  make  such  allowance.a. 
Let  the  award  be  confirmed. 

Note. — Fide  Jones  v,  Frazi'r,  1  Hawks  .^79. 

Aiiniiynious. 

The  action  of  account  will  n)t  lie  for  a  lejjatee  ^ig-aiiistan  execu'or,  o- 
the  executor  of  such  ex  cutor. 

AcriiuBt.  The  jury  had  found  a  verdict  for  the  I'lairi- 
tiflf.  suhj<'Cl  to  the  oninii"!  of  the  court,  op<ni  ttcqu  S'iou 
wh  ijier  this  action  will  lie  against  the  executur  of  >ue, 
who  as  execntop  took  the  giods  of  the  tes'ator  int.i  his 
possession,  and  hiied  oui  the  negioes.  &c.  This  suit 
was  couinienced  by  one  of  several  legatees.  In  ihe 
^argiiiuent  of  iliis  case,  were  .  iied  5  BI.Com.^G*^  Reeves's 
En:;.  Law  391.  2  Reeves  1G8,  16'J.  3  Dyer  277.  Per 
curirtm,  this  action  will  not  lie  in  the  presini  case.  The 
wiii  of  account  lie'h  against  a  man  as  guardian,  bailiff 
or  lecciver ;  an<i  by  -tatule,  against  the  execntoi'- of -nrhj 
bu'  it  lieth  not  against  an  exei  ntoi  who  in.  k<a  a  iir.ifit 
of  the  estate  of  the  deceased,  noi-  against  his  executor — 


260  MAYWOOI)*S    REPORTfi. 

Sep.1795.  for  tlic  1r\v  liatli  pirnidnl  ohcr  riit  ans  to  call  an  oxccu- 
*<^^"*'"^*'  t')i  I"  Hrc'iiiiii,  wlirre  all  llu-  legatfps  inust  juin  in  iiVie 
suit,  and  not  carli  oiip  urUieni  hairaS't  tlie  i-x<'i'ntoi- with 
a  -epara'p  suit.  Tliere  is  not  any  aiitliority  to  sli<-\v, 
(SSr)  th  it  an  exerntor  was  <'*it  rliargfd  in  account  ax  .e;»ar- 
dian ;  wtiatPVfr  he  iccovers  is  asscis  for  the  wIioIp  es- 
tate, and  not  the  partinilar  propt'il>  of  an>  fiperial  lega- 
leo.  Thi-re  is  no  prixitj-  lietwi-en  the  lejjaire  and  execu- 
tor, which  is  esspiiiiHlly  necessary  to  tin-  sn|i))ort  of  tliig 
action,  Co.  Lift.  172.  The  cx'cntor  does  not  acti)j  the 
aiipoinlMicnt  ()'•  choice  of  the  legatee,  as  is  the  casi*  with 
thf  arnardian  :  hut  by  the  xppointnient  of  ilu-  ie»tator; 
th'insrii  the  guardian  shull  liavc  an  allowance  of  all  his 
rcHSiiiiable  costs  and  expences.  Co.  Litt  89.  And  so 
it  ma)  he  thoMjfhi  no  incon«enirnre  ir)  tin-  executor  to  be 
chaisji'd  that  way,  it  is  roiivenicnt  in  tliis.  that  he"  is 
charj!jenble  therehy  by  each  legatee;  whereas  in  the 
mi'des  anciently  picscrilied  in  the  cases  of  executors, 
they  most  all  join.  Ii  would  not  only  he  a  perversion 
of  teini>i,  bnt  a  Rreat  wrong  to  the  executor  to  charge 
him  as  bailiff,  vsho  is  liable  to  account  not  only  for  tliQ 
profits  he  actually  made,  but  for  all  such  as  he  might 
hnvt-  made  by  indnsli-y  and  care  ;  and  as  a  receiver  he 
ought  not  to  he  charged  in  this  action,  becau'-e  the  re- 
ceiver is  not  to  be  allowed  any  expences  or  rhatges 
which  an  ixecntor  ma)  he  by  1715,  c.  48,  s.  7. — So  there 
was  judgment  for  the  Defendant. 

r.  Bi-own's  Executors. 

The  indisposition  of  »  witness,  whose  deposition  lias  been  tuken  de 
btne  esse  and  was  now  off'^icd  to  be  rsad,  cannot  lie  proved  by  the 
oath  of  the  party  producing  it. 

The  Plaintiff  brought  his  action  against  the  Defendant, 
for  a  sum  of  money  \yhich  lie  alle^'ed  he  lent  to  BroivUj 
in  his  lifoliine,  when  going  to  the  Convention  and  Assem- 
bly in  1789.  The  Defendant  prodined  \ery  strong  cir- 
cumstances to  show,  that  the  instiiiment  purporiirig  to  be 
signed  by  Broivn,  in  acknowledgment  of  the  leicipt  of 
this  inoeey,  was  loiged.  In  order  to  rebut  this  testimo- 
ny, the  I'laintiff  moved  to  read  the  deposilioiMif  a  woniaii, 
who  had  lived  at  the  house  of  Ho-  Plaimilf  about  the  linie 
whi'ii  ihi^  ■•loiii  \  was  siiid  to  b<'  lent,  and  who  as  it  vvas 
alleged,  heard  Brown's  (icknuwiedginent  of  the  debt — 


HAYWOOD'S    rvEl'OUTS.  261 

this  ilepnsition  !iad  licoii  fHken  de  I/ene  esse,  ami  General^'^V-^^°^- 
Davie  t'i:f  (lie  PJaintilF.  <i(f<-re(l  'o  (uiixc  iI'P  iivsen    i   -  ■-'^^''"'*«^ 
(lis|ii>siiiiiii  (if  liie  vMiiDHii,  by  ihc  <»atli,  >  f  i!n-   PlHiiitiff; 
anil  saiil,   i|i<tt  had  iilwiiys  berii  llic  pi-.inici',     B.qt,  per 
Uaywiod.  Jiistiri'.  \vh(»  gave  tlip  opinion  »(  tin   r>-urt— 
I  caiinii'  sa\ ,  because  !  <l'>  not  crnii  inliec  how    ho  prac- 
tici"  liatli  b('<'ii.   but  siiirly  upon  .pi'inci|)Ie.  m*  niad't-ial  a 
fact  as  tin-  in(iis|in>iiiinn  nf  the  wiii.«vss.   upon  v  bich  de-    _ 
peiids  till'  readings;  ib«-  di'|M>siiii)i>,  and  iiei'baps  npun  that, 
the  fate  of  tlieraiisi',  sbmild  be  proven  by  sonic  niher  pei'- 
son   than  Jbe  I'lainiift'.  \\\ii>  may  be  gi-eatly   ititi-reiested     (228") 
in  bavinej  Ibe  drposition   read,   ralbif  (Ir.ui  the  witness 
examined  anil  ciuss  examined  in  court.      'I'hat  Ilit-  indis- 
piisitlon  or  dfatb  of  Ibe  witness,  is  to  be  pro* en  by  ytbers, 
is  sli-ont;!)  ini|iti<'d  in  the  rtord?   iisrd  in  tbe  case  u(  Fry 
and  Wood.     1  .9tL:  445,  and  in  1  Mo.  -'82.  283,  Hie  fall- 
int!;  silk  of  the  witness  was  proved  by  an  iiid-i-fli'teul-iJHr— - 
son.     In  the  present  case,  there  w.is  no  one  in  coiiri  wlm 
conid  prnve  tin'  indisposition  of  the  witness,  and  the  de- 
position «as  i-ejrcted — though  it  wuh  afterwards  read  by 
consent  of  parties. 
XoTE. — Vide  ^iiwnymoita,  2  Hrj.  "!. 

Abner  Nasb  i".  Administs-ators  of  Abiier  Nash. 

A  devise  'o  Itje  PlalDiiffiifcasI)  sufficient  in  the  opinion  nf  the  c\< 
cutors  noi  ixxeedinj*  £  (lOO  to  pnroliaee  a  tract  of  Ihi"!  ;  in  a  Col- 
lowiiip  clause,  tlie  follown  g'  devise,  "  I  !;ive  to  my  wile  all  tlit  ne- 
grois  J  olMaintd  in  ni.irri  .g  wiili  li.r,  and  'Ii.'ir  increase,  also  one- 
xliird  of  stork,  &c  mil  tli  ■  residue,  I  ffive  to  my  cliiUlren  by  my 
present  wife."  The  est.it<  is  fihansted  except  the  ntgrpes,  con- 
tainid  in  the  residuiir\  clause  to  il>e  wife  nnd  children,  anct  ciebts 
lo  a  larpe  «mount  remain  unpaid.  Plaintiff  claims  liis  £  10/0.  Oe- 
cided  that  the  Plaintiff's  l.g-^.cv  is  g'.  neral,  but  st;41  cntithd  to  bd 
paid  outof  tlic  rcsidiiaiy  pavt  devised  ti'  the  wife  and  children, 
which,  as  a  rrHdtiinn  c  n  never  be  specific: — that  the  children's 
part  is  'o  b«  first  iipnlied,  as  the  wile's  pavt,  'liouph  g<.-neial  and 
residuirv  as  lo  the  Plaintiff,  is  specific,  in  jefer.'iice  to  theirs: — that 
as  tho  tJstator,  111  mentioning  the  sum  of  £1000  for  the  PUintifF, 
contemplaied  a  lull  enjoyment  by  the  hg.tt>.es  of  their  respective 
legacii  s  of  slaves  ;  theiel.i-e,  unil^r  the  discretionary  power  ifiven 
to  the  executors  of  fi\i;ig  t'e  amount  to  be  paid  to  the  Plaintiff,  his  ' 
ItJjracy  shall  be  abated  from  £1000  in  proportion  to  the  value  of  the 
negroes  that  shall  be  required  to  pay  the  debts. 

In  this  Case,  liiere  was  a  devise  lo  (lie  Plaintift'.  atnongsl 
iiliee  tilings,  of  I  a.sli  sufficient  in  the  opininn  of  ihe  r.KC- 
iitois,  not  ixceciiing  one  tlioiisand  [ioimkIs,  to    purchase, 
■rt  tract  of  land  '111 '(".'.f  'ivi'i-.     In    ;■.   stihsequent  clause 


262  UAYWOon'f!  reports. 

Sep. 1795.  affpr  S'^'Hic:  spvci  rtl  l<'gri«'«  fo  hi-^  rliiltlivn  by  Iiis  fust 
^•^"^""^^  vile  lies\s.  all  I'li'  nsi  oC  my  eptiiti-,  I  jji^e  .iiiil  lio 
qi  path  lis  f<illn\\s;  "I  (jivp  ami  bi-qiiPMlh  lo  ni>  bi-i>\<d 
wile,  all  ilie  iiPjsjiops  I  itlttHini'd  li>  iiiairi«frp  >\itli  lici".  uid 
tlicir  iiirivasc  :  hI^-khih  ."liitd  nf  all  mv  itlaiilatinii  ~tiick, 
Iioiisp;  old  -.iiiil  kit(h<!i  f'lifiiitiiic  A>'(l  tb'' if-i'lm- 1  ajive 
i(i<l  lipqinatli  to  mv  rliilcliec  liy  my  presi  iii  \\'\t\ ,"  &  ■.  &r. 
TIh'  wliolc  of  tlie  e<i^tp,  pxcpl  a  |>Htt~iif  'in  firniiiirp, 
aii<l  tlie  iieirr"es  ( omiuclirndi'fl  in  the  iP'.^idtu-  to  the  wife 
aixl  yoiingpi-  rhiUln'ii.  is  pxb.uisif-d  ;  a>id  iIippp  yet  ro- 
niiiiiis  dcl)tK  to  lie  pHid,  to  thp  aiiioiiiit  of  four  <i)ii>iiv!.'vtid 
pounds  and  iipv  ards.  The  PUiiitilf  riaiiiw  liis  th"'"-^ind 
pounds  leji^iry. .  This  rjisp  \va«  now  .iiijiird  t)>  Taylor 
for  ilip  PlHiii'iflT,  ;tiHl  Tiaric  f<>i-  the  Defri'daiit — ihcii-ar- 
j^unionts  arc  s|iO't1>  rtd'erttd  to  and  statfd  ii'  ilie  Col- 
lowii'c:  ojHoioii  After  the  artrument,  ihe  court,  conijiHsed 
<if  Vn.iiiAMS  and  Havwook,  took  time  l»  advisi .  s;.yiiig 
the  judijmpnt  of 'h**  I'onrt,  \\  heu  tliry  had  fnrmeil  iln'ip 
opinion,  should  he  rniertd  as  of  this  te.m — liowc>er  the 
judj^iiMiii  was  not  entered  till  the  next  icrm.  A'  whtrh 
time,  by  the  consent  ol  the  aiioriiies  on  lioth  sides,  it  «  as 
enterei!  iurordin.!!;  to  tlie  opinion  of  Judge  Hatwood — 
Ju-jcre  Stonk  assi'ntinj2:. 

Judge  Haywood — Tlii;)  legncy  to  (he  PlwiniiflT,  is' a 
money  legary.  uot-A  i'hsiaudiog  1  F.f-yil.  197,  for  bi'ing 
a  bei|iirst  of  inoniy,  if  ii  hr  i»oi  a  ^pe(!fic  ligacy,  itmdst 
of 'onseipo-nce  Stand  in  the  i-aiik  of  a  pi  ciiniiiry  one,  A 
legacy  of  uioiiej  \^  -^pi'cifie  only  in  sucli  ras.'.s  where  I  he 
money  is  ideutifi' d  and  dslingiiished  from  all  niber 
money  ;  as  miiii<->  in  such  a  liai;,  or  in  such  a  bond,  or. 
(_229)  to  he  paid  on>  'if  such  a  seciiriiy,  or  in  such  hands  \. 
Jtk.  .''OS.  nm  il  is  no)  a  htst  htjacy,  as  coniendeil  for 
by  thr  D'l'enda  I's  counsel  ;  for  it  is  not  made  payable 
out  ol  ;>i  y  particular  fund.  Had  it  been,  and  the  fund 
had  (.tiled,  it  would  ha\e  been  lost  as  he  contended.  2 
Brown  Chan.  "25.  Here,  il  is  not  saidnnhof  what  part 
of  ihc  esiati'  it  sbidl  he  paid,  and  of  course  by  the  rule 
of  law,  nmst  bi  f<aii'.  out  of  tin-  n-siduary  part,  2  Ves. 
563.      I  Atk.  414,  418.      \  P.  fiil.  404. 

The  residue  menrjnned   in  this    will,   is  argiu'd    to   be 
sprcific  :  as  negroes  are  the  subJeM  of  it,  and  they    will 

pas-   hy  the  asst-nt    of  jlie   exernior,      1   P.   Hit.    540 

'Vlirrc  'he  leijacy  is  s|,i'cific,  il  will  pass  by  the  assi  m  of 
the    executor;  but    every    legacy    which   will  pass  by 


HAYWOOn's    KEPORTS.  263 

the  aswnt  <»f  the  exocutor,  is  not  therefore  sperific.  The  Sep.  1795. 
resiiluo  fo  Mrs.  JVasli  in  this  case  whs  of  iie^rVocs  ;  hut  "■^"''''"'*^ 
it  is  'Mit  siirciCu- — ihei'e  is  no  case  in  tlie  Ixjuks  wheiv  a 
resiiliiuin  hath  heeii  held  to  be  a  sjier ific  >ea;iK'^ — >i  resi- 
(liiiiin  is  tlio  uilcuninf^s  of  ;tM  estii'c  leinninint^  ;»rtei-  debts 
ai.o  li'jjHciosp.ii.l.  2  S/.  Com.  514.  ,  1  Jilk.  418.  .3  P; 
Wil.  3«5.  2  Ves.  563.  1  P.  IVil.  4  04.  In  ea(  h  of 
these  cas'S.  it  is  adiuilu-il  on  ali  hanils,  ihiitil'  tiR>l(<^acy 
Avas  s|ie(i(ic.  it  was  lost  ;  hut  if  a  li-sacy  of  qiiaiiiiiy 
oiil).  it  was  fo  be  inaiie  a;iMid  oil'  of  the  fesidouiii.  The 
I'est  of  inv  estate  cann<ii,  in  the  iiatiife  of  thinj;s,  he  a 
speiific  letrary.  exem|ittil  fi-onj  any  de|)en(htice  o'li  tlie 
othfi- li-g.1fies  pnccdiu^  it.  It  is  a  relative  tei'tii — its 
qiianlitv,  and  cxen  i!s  existence,  dt'pends  eniiffl)  rijion 
the  previous  iai-.ini;  iif  the  p.rticulai  letjacit  s.  TiiiTe 
can  he  no  irsidne,  if  tlieee  lie  not  estste  cnou^n  t't  dis- 
eliaip'  the  !iaiti(ula>  lejcacies  to  which  it  iTlines.  tfs" 
quaniity  must  depend  npon  llir  (|uan(ity  of  the  p.irticulae 
lej;acii  S  to  he  raised  ont  of  tlie  testalor'^  estate.  It  diwiin- 
ishes  01-  incceases  in  propot  tion  to  the  lai'ii^eness  oi-  stoall- 
MCs  of  the  paiiictilai-  !c:5a(  ies  which  insist  first  he  taken 
fioiu  the  net  istate  ;  and  tiie  qnestinn  alniut  conii'ihniinn 
never  arises,  hut  v\ln  re  vvTai  was  to  form  the  resi'lnuni 
is  txhausied.  2  Ves.  562.  Whilst  there  remains  any 
of  the  estate  whii'li  foVni-i  the  residuum,'  it  is  liabh-  to  be 
resorted  to  hy  tlie  particular  let;.ttees,  unk'ss  their  lej^a- 
cirs  are  specific.  (»!•  otit  of  a  particular  fund.  It  is  ar- 
gued hy  the  D-fen<!anl's  coutiscl,  that  as  this  legacy 
claimed  l)y  ihe  I'lainiiir,  is  a  peruniary  one,  and  the  re- 
sidue spi'iific,  that  (lie  residue  shall  not  conn' into  coiifri- 
biilion  with  if.  It  is  said  on  the  oihee  side,  tiiat  this  le- 
gacy claimed  l»y  the  I'lainliflTis  a  specific  one;  because 
!o  be  laid  out  in  land  ;  and  t  ,:it  money  to  be  laid  out  in 
land,  shill  he  taken  as  land  ;  and  that  a  devise  of  land  fc^.-.r.-s 
is  specific.  Ii  is  so-^hut  tlit^  argument  is  fail-icious.  It  ^—^^' 
proi  eeds  upon  this  rule  oi  Equity,  tliat  wliat  ouglit  (o 
liave  been  done,  is  con-.idi-red  as  being  done.  The  I'ule 
is  here  mis;ipplieil,  and  Ih^'  whole  doctrine  built  upon  it. 
This  rule  is  never  applied  in  a  di.spuie  between  a  icsidu- 
ary'and  pirtii  ular  legatee  ;  but  always  heiween  the  beir, 
and  personal  repr"eycntative  of  the  particular  legatee. — 
The  heir  claims  the  moni-y,  though  not  yet  laiil  out  iti 
land,  an  land  ;  hik!  Ci.iiHd.s  iiis  Eqniiy  upon  tiiis,  ili:it  the 
delay  of  the  execnlor  or  trustee  to  lay  it  out  in  lan>l.   os 


264  Haywood's  repuhis. 

Sep.  l"95.  iic  ouijlit  to  Iiaxp  (liiu\  shall  iititlici'  pcijndirc  iiiin,  nor 
^^"'''^'^^  bi'iiffii  til''  persiiiKil  rcjUTMi'iitative.  Hi-it  tlie  cmirt  will 
8i(_\  >\liatllie  rxeciitoc  oiij^li'  t<»  Uaw  iloiip  previous  to  ihe 
dca'li  of  the  Irijati-e,  shall  bi-  coiisiileicil  as  liaviii:;  been 
(lone — by  force  o!  \Nhir.h  liciiuii,  the  inoney  will  now  go 
into  Ihe  same  haoil-i,  as  ^hc  laiiil  lo  be  |iiiirkaseil  witli  it 
Ntoiild  have  (lone ;  and  ihiis  no  one  uill  he  injured  by 
tin-  di-lay  of  ilii-  ti-uslee.  'I'he  misapplication  ot  this 
fiile,  caused  the  mistake  in  F.  WiL  127.  noiiced  in  I  P. 
Wil.  539.  and  would  occasion  the  same  mist. ike  now, 
weie  it  not  atteiid>(l  to.  'I'lii.s  is  the  only  poin!  estab- 
lished l)y  the  Cases  cited  lor  the  l'laintifr.'ri».-  1  P.  »'i/. 
ISr!  1  Vern.  52.  471.  2  Vcrn.  5.;6,  58!'.  679.  I  P. 
Wit.  172.  3  Jlk.  2j4.  3  P.  mi.  212,  hut  there  is  no 
disjMiie  in  'he  pres^ent  c.ise,  itelwcen  thi'  heirs  and  per- 
sonal rep  esentatircs  of  the  li'jjatce,  ami  therefore  all 
those  auilioi-iti<-s  are  lo  be  laid  oui  of  the  case. 

But  if  it  were  not  (In-  rule  of  law,  that  the  re^idiiuni 
were  to  be  diniinishrd  by  Uie  particular  li'jjjacies,  in  pro- 
(lortiun  to  ilieir  aiuonnt,  tliQi'i-  is  enou,i;li  in  this  will  to 
show  it  lo  have  Ineii  the  te«itator's  iiitiniion,  thai  the  debts 
ai  li  vist  should  he  paid  out  of  the  residuary  pari;  and 
then  it  will  fdlow,  that  the  p.irticular  legacies  are  not 
to  he  affected  by  the  debts.  After  ifiving  all  the  residue 
of  his  estate  to  his  yotin.;er  children,  he  gi»es  power  to  his 
exeintors  to  sell  any  p  ii  t  of  the  laud  included  in  this  re- 
siduum when  they  shall  see  occasion  ;  and  he  adds  in  the 
next  sentence,  that  tin-}  ^liall  collect  and  pay  his  debts  as 
fast  as  possible;  and  p:iy  the  surplus  of  the  ninnies  into 
his  wife's  liaiid-i  for  the  benelii  of  liis  sai<l  y.iuuger  ciijl- 
dren.  His  debts  were  in  lii.s  conteiiiplatiiin  when  he  di- 
rected this  sale  id'  the  lauds,  and  it  was  also  in  his  cou- 
teiuplaiiou.  that  a  coiisideralile  part  of  the  iiionie'j  to  be 
raisrd  by  these  sales,  was  to  In;  e.vb.tusted  by  his  execu- 
tors; and  the  surplus  to  !;o  to  Ills  younger  children  whose 
(231^  lands  were  thus  to  be  sold  if  necessary  in  liie  opinion  of 
the  executors.  It  seems  evident  tio'ielore,  lie  conieiii- 
]dated  the  payment  of  his  di'bts  out  of  tlic  projicrtv  coiii- 
prehended  in  this  residue  lo  his  younger  childreii.  It  is 
true,  he  seeined  to  snp|iiisr  the  lands  would  he  fully  suf- 
ficient for  this  pur|)<>.se;  but  it  is  equally  tiin,  he  suppn- 
8eil  bis  p.irticular  Irgacie^  would  imt  bi-  li.iUle  to  those 
debts,  and  then,  the  rule  of  law  more  strongly  applies.— 


HAYWOOU'S    REPORTS,  265 

It  is  the  strong  hent  (if  my  iucliriittioii  lo  make  this  lega-  Sep.  1795. 

cy  contribute,  because  tlic  testator  stippiiseil  his  nej^io  part  ^■^"^''^"^ 

of  tlie  resiiiuuni  at  least,   would  be  left  for  his  wife  and 

younger  children,  and  ijossibly  a  sur|)lus  out  of  his  lands 

to  be  sold.     He  did  not  foresee  the  great  deficiency  that 

would  happen,  and  that  it  would  become  necessai-y  to  fall 

u|ion  the  negroes  intended  for  his  youugei-  children;  but 

yet  I  cannot  persuade  myself  to  depart  from  a  i  ule  of  law 

so  well  established,  and  say,  that  these  negroes  being  a 

part  of  the  residuum,  shall  only  abate  in  proportion  with 

the  particular  legatees.  , 

It  is  argued,  that  although  tliis  he  a  specific  legacy,  the 
residuary  legatees  are  not  bound  to  contribute  ;  because 
these  legacies  are  of  a  different  species  of  property,  name- 
ly of  negroes,  and  of  money  ;  and  where  there  are  two 
specific  legatees  of  (\vu  different  subjects,  the  one  shall 
not  contribute  to  malie  good  the  other.  2  Ves.  i)6i.  I 
take  the  law  to  be  thus,  where  specific  legacies  are  given 
to  several  persons,  of  several  parcels  of  a  particular  sub- 
ject ;  and  that  subject  fails  in  quantity  to  sup|)ly  all,  thei'C 
each  legatee  must  abate  in  proportion  ;  vyhen  at  the  same 
time,  other  specific  legatees  of  a  different  subject,  shall 
not  contribute  at  all,  or  be  at  all  al!'ected  by  the  defici- 
ency. For  ill  such  case  wlio  shall  say,  which  one  of  the 
legatees  stiall  be  totally  (lis:ip{iointed  f  And  yet  one,  or 
more,  must  be  totally  disa|)|)ointed,  unless  an  abatement 
should  talxc  place  ;  hut  when  all  tlie  legacies,  which  were 
j)ecuniary,  or  unspecific  legacies,  are  exhausted  in  the 
payment  of  debts ;  and  thei-e  still  lemain  debts  to  be  paid, 
then  all  the  specific  legacies  shall  abate  in  propoition — 
For  who  shall  saj,  whi(  h  of  these  specific  legatees  shall 
be  disajipointeit  of  his  legacy?  They  are  all  equally  ob- 
jects of  the  testator's  bounty.  1  F.  IHl.  404.  3  Bac. 
.^6.483.  In  the  present  case,  there  is  no  dispute  between 
specific  legatees  cd"  llie  same  subject,  insufficient  for  the 
payment  of  all,  nor  yet  lictween  specific  legatees,  where 
all  other  parts  of  tin;  estate  are  exhausted— there  yet  re- 
mains a  large  residuum.  1  P.  fVil.  404.  But  the  truth 
is,  neither  of  these  legacies  are  specific  ;  neither  the  r^ggN 
Plaintiff's,  nor  that  of  the  residuary  legatee;  and  there-  *■ 
fore  this  argument  is  without  foundation. 

It  follows  then,  that  the  adminiairator  de  bonis  ^on, 
must  pay  the  legacy  claimed  by  the  Plaintifl",  out  of  the 
residue  bequeathed  to  the  younger  children  ;  and  if  that 


266  UAYWOOD*S  REPORTS. 

Sep.  1795.  is  not  siiffiricnt.  tluMi  out  of  tliat  part  of  the  residue  be- 
-^'"'^^^  qiiea'hed  t>  JUrs.  JWis/j— for  her  legacy,  thoiigli  e;eneral 
aiul  residuary  as  to  the  first  tiiildren,  is  particular  in  rcs» 
pect  of  the  younger  children. 

The  only  question  then  remaining  is,  what  shall  the 
Plaintiff  r«>covpi-?  The  tesiatoi-  after  bequeathing  a  num- 
ber of  negroes  to  tiie  Plaintiff,  partic^ilarly  naming  tlicm, 
adds,  "and  cash  sufHcient  in  the  opinion  of  my  executors 
hereaftei-  to  be  named,  not  exceeding  one  thousand  pounds, 
to  pnichasi?  a  tract  nfland  on  Tar  river."  Tliequanti- 
ty  of  money  is  left  uncertain,  and  the  extent  and  quality 
t)f  the  fund  also.  It  is  ai  gued  by  the  counsel,  that  this 
was  left  in  the  discretion  of  the  executors  ;  that  they 
\  tnight  be  at  liberty  to  judge  of  the  price  of  the  tract  to  be 

purchased,  from  the  circumstances  in  which  they  might 
afterwards  find  the  estate;  and  that  as  the  executors  were 
to  have  regulated  their  discretion  by  these  circumstances, 
so  will  the  court,  now  the  matter  is  brought  before  them. 
No  authorities  were  cited  in  support  of  this  position,  and 
there  are  but  few  to  be  found.  There  is  one  passage  in 
Swin.  496,  and  another  in  God.  424,  s.  16,  which  favor 
it.  In  the  latter  of  these  books,  it  is  said  from  the  civil 
law,  that  the  ordinary  shall  moderate  the  sum,  with  res- 
pect to  tlie  testator's  estate.  In  the  former  of  them  it  is 
said,  that  if  such  an  uncertain  legacy  be  given  for  the  per- 
formance of  some  act  or  otiier  consideration,  &c.  &c.  so 
much  is  understood  to  be  disposed,  as  may  satisfy  or  an- 
swer tlie  purpose  nhcreunto  it  is  appointed  ;  and  as  the 
ordinary,  considering  tlie  necessity  of  the  thing,  and  the 
ability  of  the  testator,  and  the  continuance  <»r  the  gift, 
shall  deem  expedient.  These  hooks  it  must  be  admitted, 
are  not  of  the  best  authority  ;  they  contain  collections, 
taken  partly  from  cases  adju<lged  in  our  law,  and  partly 
from  the  civil  law — yet  as  the  rule  laid  down  by  them  ifl 
so  equitable  in  itself,  and  has  not  been  contradicted  by 
any  adjudged  case,  it  seems  fit  to  be  adopted  in  the  pre- 
sent case,  and  then  the  court  will  regulate  their  discreti- 
on by  a  respect  to  what,  in  all  probability,  the  testator 
supposed  was  the  net  estate  he  had  provided  for  his  young- 
er children  ;  which  seems  to  iiave  been  the  slave  |)art  of 
(233)  their  residue,  or  in  other  words,  he  probably  supposed  the 
Plaintiff  would  have  one  thousand  pounds,  when  they  had 
the  whole  of  the  negroes  comprehended  in  their  residue. 
Upon  this  principle,  the  Plaintiff's  legacy  should  be  di- 


havwood's  keports.  267 

ininished  in  propurfidn  to  tlie  dimimititin  of  their  lesidu-  ^*P  ^^^^• 
urn  5  apd  for  tlie  |iui'pose  of  ascertaining  tliis,  let  tlie  Mas-  *>^'^''''^' 
ter  asrei'tain  liie  value  of  nil  that  part  of 'heii-  i-c-idiie  iliat 
yet  remains  unsold,  except  negrors,  atui  drdurt  that  va- 
lue from  the  debts  remaining^  iiti|)aiil — let  him  ascertain 
the  value  of  the  £1000  legacy,  dollars  biing  now  estima- 
ted at  ten  shillings,  and  at  twelve  sliillirigs  wlieo  tlie  will 
was  made — let  him  then  ascertain  ihe  value  of  tin-  slaves 
contained  in  the  residue,  and  what  pioporlion  the  said  le- 
gacy beareih  to  the  value  of  the  slaves  ;  and  deduct  that 
j)ro|iortion  of  the  balance  of  tlebts,  and  also,  the  £250 
paid  in  part  by  the  Defendant,  from  Ihe  said  legacy,  and 
report  the  balance  to  this  court.  This  repor'  was  made, 
and  a  decree  made  for  the  balance  with  inteiest. 

Note. — As  to  legacies,  general  or  specific,  see  Toller's  Lnu>  of  Ex- 
ebutors,  301.  As  to  ab:itement  of  legacies,  see  ibid.  339  A  residua- 
ry legatee  may,  by  ihe  particular  words  of 'be  v.  ill,  be  aspecitic  lega- 
tee instead  of  a  general  one.    Cook  v.  Oukly,  1  P.  Wil-  302. 

Glasgow  V.  Flowers. 

Where  the  law  can  give  complete  redress  Equity  will  not  interfere. — 
Equity  cannot  change  established  rules  of  law,  nor  act  as  a  court  of 
errors,  to  correct  eri'oneous  decisions  of  law.  When  slaves  are 
givei\  to  one  for  life,  remainder  over,  the  increase  born  durii.g  the 
life  interest,  will  go  with  the  principal  (o  the  remainder  man. 

This  was  a  bill  in  Equity,  the  object  of  which  was  to 
be  relieved  against  a  jirdgment  given  by  tiic  Superior 
Court  at  Hillsborough,  during  the  last  term,  whereby 
Flowers  the  now  Defendant,  as  the  executor  of  Flowers 
deceased,  had  recovered  two  negroes  of  Glasgow,  which 
were  tiie  descendants  of  a  negro  woman,  given  by  the 
will  of  the  deceased  to  his  wife  during  lier  life  ;  which 
two  negroes  had  been  born  during  the  continuance  of  her 
estate.  A  title  to  these  two  negroes  had  been  regularly 
deduced  from  the  widow  to  Glasgow. 

Per  curiam — Where  a  case  i«  so  circumstanced  that  a 
Court  of  Law  can  give  as  complete  redress  as  a  Court  of 
Equity  can,  a  Court  of  Equity  should  not  interfere  with 
it — now  the  circumstances  stated  here,  are  such  as  are 
properly  cognizable  in  a  Court  of  Law,  and  with  respect 
to  which  a  Court  of  Law  can  give  as  complete  redress 
to  Ihe  party  injured,  as  a  Court  of  Equity  could.  The 
court  decided  in  this  case  according  to  the  case  of  Timtns 
and  Potter,  which  must  now  be  taken  and  is  taken,  as  a 


2W  haywood's  reports, 

Sep.  1795.  (lecision  estab1i.sliin,&^  the  rule  of  law  on  tliis  siibjcctr  It 
^"^""'"^^  is  a  very  great  mistake  to  siipposp,  a  Court  of  Equity 
can  deride  against  the  rules  of  property  established  by 
judicial  decisions.  The  Court  of  Equity  is  as  much 
bound  to  observe  them  as  a  Court  of  Law  is.  If  the  de- 
cision was  wrong  the  Court  of  Law  might  have  granted 
a  new  ti'ial  :  and  if  ever  a  court  for  correcting  errors 
should  be  establiHhed,  the  wrong  decision,  if  any  there 
(234)  l>c»  •"*y  1*6  H  subject  for  the  jurisdiction  of  that  court ; 
but  the  Cour't  of  Equity  must  not  undertake  to  act  as  a 
court  for  correcting  ei-roncnuf  judgments. — So  the  bill 
was  dismissed  for  want  of  Equity. 

Note. — The  case  of  Timms  and  Potter,  so  often  cited  in  actions  for 
ihe  increase  of  slaves,  was  decided  at  Hillsborough  three  or  four.years 
after  the  war.  It  is  a  leadinj;  cuse,  and  governs  a  vast  deal  of  the 
properly  of  this  country  ;  and  therefore  it  msy  not  be  improper  to 
subjoin  the  substance  of  it  in  this  place. 

Glover  gavi-  a  negro  woman  to  his  dmigliter,  hut  re- 
served I  lie  use  of  the  negro  during  his  life.  There  was 
afterwards  a  judgment  against  Glover,  and  an  execution, 
and  the  wencli  sold  to  satisfy  it — Potter  becoming  the 
purchaser.  Timms,  the  husband  of  the  daughter,  after 
the  death  of  Glover,  sued  for  tlie  wench  and  her  children. 
The  Plaimift'had  a  verdict,  and  a  special  case  was  made 
as  to  the  children  born  in  the  lifetime  of  Glovei: 

This  special  case  was  several  times  argued,  the  De- 
fendant's counsel  citing  and  relying  upon  the  cases  that 
decide  the  interest  of  money  accruing  during  Ihe  parti- 
^  cular  estate,  to  belong  to  the  owner  for  that  time  or  cestui 

que  use;  and  also  2  Bl.  Com.  396.  Puff. lib.  2,  c.  4,  p.l  1. 

After  time  taken  to  consider  from  one  term  to  another, 
the  court  decided  and  gave  their  opinion  at  length — 
Spencer  and  Ashe  being  only  jiresent,  Judge  Wii- 
xiAMs  being  absent,  but  of  a  different  opitiion. 

They  said  the  remainder  carried  with  it  the  increase, 
and  vested  the  property  of  the  wench  in  the  I'emainder 
man  ;  and  there  was  left  in  the  owner  for  life,  only  the 
use  and  possession,  which  use  entitled  him  to  the  labour 
of  the  wench  and  nothing  more.  The  increase  went  to 
the  remainder  man,  to  compensate  for  the  deterioration 
of  the  wench,  by  age,  labour  and  breeding,  whilst  in  the 
serticf  «if  tlie  owner  for  life.  This  rule,  ihey  said,'  had 
prevailed  ever  since  the  first  settlement  of  the  country. 
It  had  been  constantly  understood  to  he  the  law.     The 


HAYWOOD  S    UF.FOltrS. 


269 


practice  of  the  country  liHtl  bcPti  fotiformable  to  it.     It  Sep.  1795. 
was  a  coiiv'iiii'tit  nile,  us  it  cnal»lc(l  owners  of  sudi  pro- ^^'*^'"*^ 
perty  more  easily  to    jirovidc  for  liicir  fiiinilies,   in   ilic 
ilislribiitioii  of   it,  and  for  tlifwe    rtasoiis    ii  should    not    , 
now  be  broken  in  upon.     So  there  was  judgment  lor  the 
I'laintifTs,  as  to  the  children  also. 

Since  this  decision,  when  the  case  of  Glasgow  and 
Flowers  on  iirred.  the  counsel  lor  Glasgow,  <ousi(\vvii\^ 
the  principles  of  llie  English  common  law.  with  ^e^ppci; 
to  tlie  increase  of  aiiimiils  that  were  the  subjects  of  pro- 
perty ;  and  also  that  itiis  decision  was  in.ule  by  two  ' 
Judges  only,  against  the  opinion  of  a  third,  had  intended  (235) 
again  to  bring  this  point  in  qnesiion,  and  he  enquired 
diligently  of  the  oldest  practitioners  he  was  atrjuainted 
with,  whether  there  had  ever  heeti  any  judicial  deiermi- 
nation  against  that  of  Timms  and  I'ofter.  The  result 
wa^,  that  he  could  hearol'no  such  decision  ;  whence  it  is 
reasonable  to  conclude,  ilierc  have  imt  been  any,  and 
that  the  court  in  the  case  of  Timms  and  Polhr,  were 
founded  in  saying  that  the  rule  had  always  been  under- 
stood in  this  country  from  its  fifsl  settlement,  as  they 
then  decided  it  to  be;  and  as  oeitainty  in  the  laws,  is 
of  much  more  conseqiieuce  in  general,  thsin  the  modifi- 
cation of  a  rule,  the  opinion  of  the  public  in  its  favour 
foi-  so  gi'eat  a  length  of  lime,  is  in  sucii  case,  where  the 
law  is  not  clear  to  the  contrary,  a  veiy  good  ground  lor 
deciding  as  the  court  did  inth(^^aseof  Tjiiimsand  Potter; 
and  as  that  decision  adils  an  adjudged  case  to  comirioii 
0|iinion,  it  would  be  very  iinprudent  for  the  Judges  now 
to  disturb  it.  It  is  indeed  not  certainly  known,  why 
this  c)piiii()(i  was  fust  entertained  in  this  country,  and 
adopted  afterwards,  since  the  rule  with  respect  to  all 
other  animals  is  different  even  in  this  State  ;  for  if  other 
animals  be  leased  lor  years,  and  biced  in  the  mean  time, 
the  lessee  shall  have  the  young  as  a  part  of  the  use.  2" 
JVels.  M.  lUM.  GoiUl.  113.  3  Ba.  M.  300.  Lev. 42.  M- 
len  139.  C  Hulst.  IT.  Ihjer  56,  a,  1 10,  212,  h.  Bro  Leases 
23.  The  rule  of  the  civil  law  is  (lie  same.  1  Uomat. 
lib.  1.  tit.  11,  sec.  S.  The  property  of  tlie  animals  leased 
remains  in  the  lesser,  so  that  he  may  maintain  ail  action 
if  the  lessee  kill  them.  U|)on  pi-inciple  t'lerefore,  it  is 
tiot  a  sound  action  to  say  that  because  the  property  is  in 
the  remainder  man.  atnl  (he  nseonly  in  the  owner  for  life, 
(hat  the  increase  nccossnri'v  must  inlnng  tn  the  remain- 


270 


HAYWOOD  8  REPOHTig. 


Sep.  1795.  tier  mas.     It  is  a  ronrliision   that  by  no  means  results 
^•^^""^^  tioni  the  premises.     It  is  a  conclusion  that  is  not  drawn 
from  such  premises  in  of hei' countries.  \vh>re slavery  has 
.  been  introduced.     It  is  the  settled  law  of  Mai y land",  that 
negro  children  born  of  a  mother  given  to  A.  for  life,  and 
after  his  death  to  B.  in  the  iifetime  of  A.  do  belonpto  A. 
unless  the  increase  nre  also  given  over  by  expre.ss  words. 
Vide  Deputy  Commissary  Guid>-.  published  by  Valetle,  p. 
91.     That  lliis  is  the  law  of  Maryland  is  confirmed  by 
the  opinion  of  a  lawyer  of  that  State  of  the  first  emi- 
nence, taken  on  tlic  occasion  of  this  suit  of  Glasgow  aod 
Flowers,  who  says  it  is  a  rule  of  the  greatest    notoriety 
,     t''C''^»  that  the  increase  in  the  case  above  stated,  beioiigs 
(.286;    In  the  owner  for  life  or  usufructuary  ;  and  tliat  the  deci- 
sions in  Maryland  have  been  so  uniformly  to  tiiat  effect, 
that  the  question  would  not  now  bear  an  argument  thire. 
It  is  of  no  re^l  use  to  in\es'igatc  the  oric^in  of  the  rule 
adopted  and  confirmed  by  th«'  case  of  Timms  ami  Potter, 
as  such  an  investigation  (onid  only  tend   to   gratify    in- 
quisitive and  periiaps  idle  curiosity  ;  but  it  would  not  be 
a  matter  of  diffiruliy  to  trace  its  origin  with  some  de- 
gree of  probability.    This  country,  though  it  began  to  be 
settled  as  early  as  the  year  1668,   it  is   "to   be   presumed 
had  not  come  utidei-  an  established  governmeat,  having 
courts  for  the  regular  and  constant  administration  of  the 
laws,  till  about  the  hrginning  of  the    present  century. 
Tin-  first  acts  of  tlie  Lrgisjatnre  that  appear   in  our  sta- 
tute tiook,  were  made  in  the  latter  part  of  the  year  1715, 
though  there  are  judicial  records  purporting  to  proceed 
upr)ii  actspas.sed  in  the  year  171'i.  It  is  probable,  and  in- 
deed it  is  a  fart  very  generally  admitted,  that  this  country 
in  its  infancy,  was  ibr  the  most  part  settled  by  emigrants 
from  Virginia,  who,  as  all  other  emigrants  do,  brought 
with  them  the  customs  and  legal  notions  of  the  country 
they  hft.  Every  one  who  has  practised  in  North-Carolina, 
will  he  immediately   satisfied    with  this  ob.servation,  if 
he  will  but  recollect  how  many  legal  notions,  borrowed 
Morn  the  laws  ofViiginia,  are  yet  current  amongst  the 
inhabitants  of  this  ci.untry.     The  law  of  Virginia  of  the 
year  1705,  made  slaves  in  many  respects  real  property, 
annexed  them  to  the  lands  of  the  owners,  thereby  placing 
them  in  the  condiiioii  of  the  ancient  villains  in  England, 
wh.i  were  adr.criptitia  ^Ubm,  :nd  went,  as  also  did"  their 
posterity,  to  the  absolute  proprietor  of  the  land.     The 


Haywood's  reports.  271 

act  of  1705  expi'cs-ly  considered  the  increase  as  a  part  Oct.  179^. 
of  the  inlieiitunrc  ilint  belonged  to  the  lieii,  and  pmvidi  d^-^"^*''*-' 
tliat  llic  tenant  in  dower,  oi-  iisutVnctuarj  owner,  slionld 
not  remove  them  ont  of  the  counti-y.  1705,  c.  23,  s.  10. 
Salk.  666,  pi.  1.  Hence,  it  is  not  iin|)roh:ible.  arose  tlie 
idea  first  entertained  in  this  country,  that  the  increase  of 
slaves  belonged  to  the  absohite  proprietor,  ex(  Jusive  of 
the  claim  of  teinoorary  owners  or  nsufrnctuaries  ;  and 
that  idea,  for  want  of  exaniinin_^  its  I'onndation,  having 
once  become  general,  the  inhabitants  of  liic  country  began 
to  act  under  it,  in  maliing  their  contracts,  wills  and  set- 
tlements as  |)rovisions  for  their  families  ;  and  jn'obably 
continned  to  do  «o,  nntil  at  length,  it  became  dangerous 
and  fraught  with  mischievous  and  unjust  consequences  to 
attempt  the  establishment  of  a  different  rnle,  or  the  true  (237^ 
one — and  the  courts  were  necessitated,  as  they  liave  been 
in  some  other-  instances,  to  permit  common  error  to  make 
the  law.  Thus,  what  at  first  was  but  a  crude  opinion, 
without  any  legal  foundation,  hath  in  process  of  time  and 
by  long  usage,  been  adopted  into  tlie  body  of  our  laws, 
as  a  fixed  and  settled  rule  of  property.  This  seems  to  be 
a  more  rational  mode  of  accounting  for  the  rule  laid  down 
in  Timms  and  Potter,  than  that  which  seeks  to  su])port  it 
upon  principles  of  the  common  law" — all  of  which,  so  far 
as  they  can  be  traced,  <ir  as  they  afford  any  deductions 
that  can  be  rationally  inferred  from  them,  are  certainly 
repugnant  to  the  rule  established  iti  Timms  and  Potter. 

NoTK.  — Upon  the  suhjpct  of  jurisdiction  of  Equity,  see  Perkins  v. 
SalUnjer,  pnst  567.  Brick'^ll  h  Green  v  Junes,  "iHuy.ZST.  Fish  v. 
Lane,  Ibid.  342.      Thoi-n  SJ  Wife  v    IVilUams,  1    Car.    Lain  Rep.  362.  :■■ 

.Lon^  V.  Merrill  &  Beard,  N.  C.  Term  Hep.  112.  Litllejohnv.  Fatillo, 
2  Hawks  302  Davidson  v.  Kelson,  loid  113.  Peace  v.  JSailing,  1 
Dcv.  Eq.  Rep.  289.  flie  poini  I'clatiye  lo  tlie  increase  of  slaves  be- 
lonjfin^  to  tlie  lenmindei'  man  is  fully  .sustainetl  by  tlie  case  of  F,ri':iii 
fi  olfiers  V.  Kilputrick  &  oth^s,  3  Hawks  4J6. 


EDENTON,  OCTOBER  TERM,  1795. 

Den  on  the  demise  of  Sandifer  v.  Foster. 

{'lie  last  line  of  a  boundary  was  from  a  white  oak,  (which  stood  half.'* 
mile  from  the  river)  thence  along  the  river  to  the  beginning  :  held, 
thst  the  river  is  the  boundary. 

Ejectment.     The  land  in  controversy  was  patented  in 
fheyear  1706,  by  one  Qee,  and  a  transfer  of  two  hundred 


272  IIAYWOOU'3    REPORTS. 

Oct.  l79o.  acres  of  tlie  tract  was  mado  to  Bridgets  by  endorsement 
''-^~'''^*^  oil  the  deed.  In  1752,  Bridgers  coiivcjcd  to  Robert  San- 
difer.  wlio  in  17G5,  dcviscl  to  liis  son  Robert  Sandifer,  af- 
ter tliti  death  of  the  devisoi-'s  widow;  but  in  th^'  intan 
time,  he  gave  tiie  lands  to  her  for  her  life.  Site  is  yet 
alive,  and  hatii  coiiveyc^d  tlie  lands  to  the  Plaintiffs.  In 
the  year  1780,  Jolin  Sandifer  ohtaincd  a  fjram  from  the 
Slate,  and  convcyi'd  to  his  son  Robert,  who  conveyed  to 
the  Defftidantapart  of  this  land.  Gee^s  patent  began  at 
the  raoutli  of  Dividing  run,  llience  north,  thence  east, 
thence  soutli  to  a  white-oak,  thence  along  the  iriver  to  the 
beginning.  This  white  oak  stood  half  a  mile  from  the  ri- 
ver ;  and  if  the  line  bo  run  a  direct  Course  frnni  thence 
to  the  beginning,  a  larg<'  part  of  the  land  described  in  the 
ri.iintiff's  grant,  will  be  l(»ft  out  i>{  Gee's  patent  ;  but  if 
the  river  is  deemed  t*»  be  the  boundary,  the  land  descri- 
bed in  the  Di-fendant's  grant  will  then  be  included  in  Gee's 
patent,  and  of  course,  be  also  included  in  Bridger's  deed. 

Per  cnrium,  Williams  and  Haywood,  after  argu- 
ment— the  river  in  this  case,  must  br  considered  as  the 
boundary  of  Gee's  patent — it  has  always  been  thus  uni- 
fiirmly  decided  in  our  courts. 

Tlie  jury  found  accordingly,  and  there  was  judgment 
accoidingly — Baker  for  Plaintiff,  Keys  for  Defendant. 

^OTE.— Vide  ffarts/ield  v.  IVtstbrooh,  post -258— note  to  Bradford  v . 
Hill,  ante  22. 

(2Sfi)       Thomas  Jones's  Administrators  v.  Joscpii  Blount's 
Executors. 

■When  tlie  subscribing  witness  to  a  bond  is  dead,  and  his  handwriting 
c:innot  be  proved,  proot  of  tnie  handwriting  of  tht  obligor  may  be 

rec-iived. 

« 

Debt  upon  a  bond  for  five  hundred  and  twenty-six 
(tounds.  The  Defendant  pleaded  a  set  off,  and  produced 
two  old  bonds,  one  dated  in  1760,  the  other  in  1768,  both 
attested  ;  but  the  witness  who  attested  one  of  them,  was 
a  lady  wlio  had  lived  some  time  ago  in  Edenton,  and  was 
now  dead  ;  and  her  handwriting  could  not  be  proved  bj 
any  one  that  the  Defendant  could  procure. 

It  was  objected  by  Mr.  Hamilton  for  the  Plaintiff,  that 
when  the  liandwriiing  of  a  deceased  witness  cannot  be 
proved,  it  is  iiTegtilar  to  prove  the  handwriting  of  the  ob- 


UAYWOOli's   utrouTs.  ~'-'' 

ligor  himself,  that  beins  not  essi'iitial  to  tlie  deed,  and  not  «Jct.ir95. 
anioiintiiis  to  any  proof  of  tlic  delivery  of  it. 
/    rer  mrium.  Williams  and  Hvywoou — The  law  only 
iTqtiiiTS  the  best  ovideti(,-e  the  party  lias  in  liis  power. — 
The  subscrihiiia;  witness  musi  be  produced  wiicii  there  is 
one  ;  if  he  he  dead,  proof  of  his  h;iitdu  riiiii.a;  may  be  ad- 
milted  ;  and  if  the  haiidwritiiij;  of  tiie  witness  cannot  be 
proven,  then  proof  <if  the  hiuidwiitiiig  of  the  oblia;or  may- 
be received  ;  this  attordiiii?  a  strong  evidence  that  the  ob- 
ligor meant  to  make  himself  {^hargiablo  by  lliat  signa- 
ture.    And  the  Dereiidant  in  tlie  present  case,  was  per- 
mitted to  prove  the  handwriting  of  liie  ohlij^or. 
NoTB.     firfc  note  10  Clemenls  &  Co.  v.  Ecison  &  Wright,  ante  IS. 

Standen  r.  Mains. 

Ueneial  reputatiim  is  a<Iinis'sibltf  ;is  evidence  in  ca-.es  iin>«»ii-?s:ry.= 
Marked  lines  and  corners  may  he  establislied  as  the  true  one,  al- 
ihou.v,h  variant  from  tlie  coui!ji.-s  and  distances  men'.ioni  d  in  thf; 
•Ued'. 

Trespass,  quarc  clausum  f regit.  Not  guilty,  Uberum 
ienenientum,  ^-c.  pleaded.  I'he  PlaintilT  claimed  under 
JlrkiU,  wiio  patented  a  tract  of  land  in  the  year  1 741;.  ex- 
tending, as  he  alleged,  to  a  line  distingtiislied  in  (he  jiiat, 
by  tlie  name  of  the,  (lotl(  d  line.  The  courses  and  ilistaii- 
ces  mentioned  in  the  pat;eiit  extended  not  so  far;  !)utoii- 
ly  to  a  line  distingiii-,heil  in  the  plat  by  the  name  of  the 
black  line.  The  D-fenditnt  eniered  iliis  intermediate 
tract  ill  the  year  1784,  and  took  possession — whereii()oii, 
the  Plaintiff  bibuglit  his  action.  The  court  jjermitted 
evidence  to  he  given,  tli.it  the  dotted  line,  which  was  a 
marked  one,  iiad  for-  a  lotig  tinw  since  'he  year  1740  been 
reputed  the  line  of  ,4rfci/r.s  tract — the  patent  called  for  a 
gum  standing  in  Robert  line;  this  gum  was  found  at  the 
termination  of  the  dotted  line.  It  next  called  for  two 
lines  of  yJoter^'j'  tract,  the  dotted  line  was  upon  these 
two  lines.  It.  next  called  for  Unsldii's  corner  :  the  dotted 
line  went  to  that  corner,  asid  there  was  nothing  to  prove 
the  black  line  to  be  the  true  oin-,  but  course  and  distance.  (239) 
Theie  was  no  witness  who  could  prove  positively,  that  the 
dotted  line  was  the  line  of  .3W-;t/r.s  tract. 

Per  airiam,  tlie  mistake  of  a  surveyor  in  describing  or 
laying  ilovvn  the  boundaries  of  the  land  patented,  should 
not  prejudice  the  jmtcntee,  if  the  jury  are  satisfnd  that 
'  ■  marked  lintj  was  the  true  one,  Although  the  distances 


374  uaywood's  uepouts. 

Oct. 1795.  thereof  will  not  crirrespoiKl  with  the  distances  in  the  pa- 
^•^■v^w  (p„t — ilicieforp  in  th<'  itiTsent  rase,  the  jury  inaj  cdnsider 
wlicthcf  iheic  is  Hutiirieiit  evidence  t"  satisfy  them,  that 
this  dittlcd  line  was  the  real  l)oundary,  thou.e;h  not  truly 
des(  I  ibed  in  the  patent ;  and  it'  they  think  so,  ihen  to  find 
for  the  Plaintiff.  The  ronrt  then  recapitnlatrd  the  rir- 
cuntsiancfS  above  mentioned,  as  affonling  a  proof  of  this 
heinjc;  the  true  line,  raihrr-  than  the  othei-.  and  the  jury 
under  their  dirertinn  fonndfor  liie  FlKiiitiff. 
NoTK. —  Vide  note  to  Bradford  v.  Hill,  ante  22. 

Ferguson  v.  Fitt. 

When  ttie  vessfl  is  losi,  the  goods  tliat  ar""  saved  are  not  liable  to  ave- 
rage— thi-  muster  does  nut  lose  his  wages  by  ilie  loss  of  the  vessel. 
These  wonls,  in  a  leUer  from  a  Def.ndant  to  the  Plaintifti  ■  I  would 
rathe.-  come  to  a  .settlement,  alihough  I  sliouli!  illow  the  accouni  as 
insis  ed  on  by  you,  than  Wail  the  event  of  a  law  suit,"  are  sufficient 
to  take  the  case  out  of  the  statute  of  limitations. 

Case..  For-  wages  due  to  the  Plaintiff  as  Ma^tei-  of  a 
vessel,  which  he  had  navigated  for  the  Defendant  to  St. 
Ensi^tia  ;  and  upon  an  account  set'l-d.  and  a  s|)i'Cta! 
~  Case  made,  stating  in  substance,  that  tliesi'  services  were 
ppifoi  ined  in  1788,  m- beginning  of  1789,  and  that  tha 
Defendant  wrote  to  the  Plaintiff  vvihin  three  years,  say- 
ing. "  he  would  rather  cmne  to  a  seltlement,  althongii  he 
shonid  allow  the  wcconnt  as  insisted  on  by  the  PlaintiHT, 
tlian  v\ait  the  event  of  a  law  suii  ;"  and  tlte  doubt  stated 
(HI  lliis  point  was,  whethi'r  the  act  of  liinitatioos  barred 
the  Plaintiff  in  this  case.  The  special  case  further  sta- 
ted, that  when  the  vessel  left  Fostatia,  laden  with  mm 
and  oiher  articles,  there  Were  on  board  six  pnintheons  of 
mm  'hat  behniged  to  the  Plaintiff,  and  tliat  the  vessel 
Wits  lost,  after  it  had  passed  the  bai-,  on  the  homeward 
bound  voyage;  and  thit  these  six  hogsheads  of  rum,  to- 
gether with  about  twenty  two  hogsheafis  of  other  rum, 
the  property  of  the  Di  fenilant,  were  saved  ;  and  the  whole 
including  the  six  hogsheads,  came  to  the  Defendant's  (los- 
s'essitni ;  and  the  doiiht  stated  foi' the  o|)ini<m  of  the  court, 
was,  whether  the  six  hogsheads  of  rum  should  be  suiyect 
^to  an  average  loss  or  not;  and  whether,  the  vessel  being 
lost,  the  Master  was  at  all  entitled  to  his  wages.  ' 

Per  cunam,  (after  several  days  taken  to  consider, ) 
when  a  vessel  is  in  danger  of  being  lost,  and  part  of  the 


Haywood's  beports.  275 

goods  on  board  are  cast  oveibnaid  to  save  Hie  rest,  and  Oct. 1795. 
til''  vt'snel  ;ifier\vaids  roincs  safe  iiiio  piti't,  tin"  goods  that  >-^~"'''^*^ 
are  saxid  sliall  be  suhj^rt  to  averaj^e;  but  if  the  vi-ssel 
sliould  not  conic  safely  into  (lorl.  then  avmge  shall  not 
take  place  ;  fui-  the  only  reason  of  average  is,  because  the  (140) 
goods  preserved,  were  sa\ed  by  the  los'^  of  the  [iiopeiiy 
thrown  overboard  ;  and  then  it  is  reasonable  ihat  llie  ow- 
ners of  the  saved  goods,  sliould  make  a  just  corniieii'-ation 
to  the  owners  of  the  goods  thrown  oxerboard — but  this 
does  not  take  place,  whtie  the  casting  of  ihe  goods  into 
the  sea,  is  no'  the  cause  of  I  he  salvation  of  the  goods  pi-e- 
served  :  and  tliey  relied  upon  Beawes.  With  resi)e(t  to 
the  wages,  sailors  lose  them  where  the  vessel  is  lost, 
from  the  time  of  their  sailing  from  the  last  port  of  deli- 
very. This  rule  is  founded  in  pcdicy,  'o  make  sailors 
Caiifill  of  the  vtssci,  and  alert  in  the  preservation  of  it, 
when  ill  danger.  They  relied  upon  3  Bac.  Mr.  593 — 
Cojiim.  rerfco  Navigaiion.  S  Burr.  148^.  Dniig.  5!M — 
But,  the  Master  is  not  subject  to  this  rule — there  is  no 
case  which  says  he  is — he  must  therefore  have  jud;^ment. 
As  lo  tiie  act  of  limitatiotis,  the  words  used  in  these  let- 
ters, will  take  the  case  out  of  it.  So  there  was  judgment 
for  the  PlaintiflT. 

Note — Vide  Ferguson  ii  Wife  v.  Taylor,  and  the  note  lliereto,  an- 
te 20,  for  the  uckiiowledgmem  requisite  to  take  a  c;ise  out  of  the  sta- 
tute of  limitations. 

Collins  V.  Dickinson  and  Allen. 

A  partition,  in  a  partnership  concern,  is  matter  of  riglil,  and  may  be 
called  for  at  any  time. 

Bill  in  Equity,  stating  a  partnership  entered  into  by 
the  Complainant  and  Defendants  in  the  year  1784,  for 
the  purpose  of  entering,  securing  and  impnn  in«:lhr  lands 
in  Lake  Phelps,  and  the  lands  adjoining  thereto,  and  for 
the  purpose  of  draining  and  preparing  them  for  cultiva- 
tion. The  bill  stales  many  tracts  of  land  secured,  the  lake 
drained,  houses  and  mills  built,  and  that  the  Complain- 
ant has  advanced  much  beyond  his  proportion — th^  bill 
prays  a  partition  of  the  lands,  and  that  the  DelemUnts 
be  decreed  to  account  for  and  pay  to  him  the  overplus  of 
hi-^  disbursements. 

yi'liey  pleaded  generally,  that  the  iiurpo  e-  fur  which 
tbc  company   associated   were  not  yet  completed,  anti 


276  II.VYWOOU'S    REPORTS. 

Sep.1795.  ,!,.,(  f^mi,  3  division  as  Hiat  jiiayed  for,  will  he  ruinous 
^^~'^''*^  to  tiMMii  sliould  it  taki!  plare.  as  oacli  of  llieni  soj);\i  ately, 
would  iii)t  l)P  able  to  manatee  the  htivincss  so  as  lo  derive 
any  profit  from  it.  'J'lie  account  was  referied  to  the 
Master,  and  lie  hail  made  his  r<'port  lo  the  present  term. 
On  the  plea,  it  was  argued  hy  UamUton,  for  the  Coin- 
])lainant.  that  a  parttnr  may  rail  for  a  partition  whene- 
ver he  thinks  propr-p  ;  that  lie  is  not  obliged  to  continue 
liis  property  in  the  Joint  conrern  longer  than  he  is  satis- 
fied »\itli  the  procceilings  of  the  Company,  ami  that  the 
difficulty  of  making  a  partition,  or  the  inconveniences  it 
produce  lo  any  of  the  parlies,  is  not  of  any  ronside- 


(241) 


ration  with  the  court.     He  cited  1789,  c.  24,  .«.  1.  JImUer 


23f;,  590.   a  Eq.  Cas.  M.  629.  630.   1  L.  Hay.  536.    Hob. 

179.   16  Vin.  Jib.  219,  240.  221.     2  Ch.  Tff.s.'  237 

On  the  otiier  side  were  cited,  Watson's  Law  of  Pnrtn. 
398,  399.  Moll  460.  /,f .r  Jlicrc.  3 1 .  And  it  was  insi.sted 
thei'e  inust  he  tiic  consent  of  all  to  dissolve  a  partner- 
ship, if  (me  wishes  to  withdraw  hel'ore  the  exiiiration  of 
the  time  appointed  for  the  company's  coiitiiiiiance ;  and 
that  when  a  jiartner  does  withdraw'  that  should  be  done 
bonajide,  not  wiiere  it  may  occasion  a  damage  to  the 
])arfnei  shiji,  as  it  would  do  in  the  present  case  ;  nor 
should  it  he  done  with  any  sinister  view. 

Per  curiam — A  partition  is  matter  of  right,  therefore 
let  ii  be  decreed  :  and  let  the  Complainant  have  a  decree 
for  mrmies  reported  due  to  him  ;  and  let  commissioners 
be  apppinled  to  make  (he  partition,  and  return  their  pro- 
^v  ceedings  to  next  term,  with  maps  or  plats  of  (he  same. 
A  decree  was  entered  accordingly  for  these  purposes. 


HALIFAX,  OCTOBER  TERM,  1795. 

State  V.  Job  Garrigues. 

If  the  jury,  in  a  capital  case,  sepHraie  williout  returninj»aTerdict,  the 
prisoner  shall  not  be  tried  again  for  that  oficiice. 

He  had  been  indicted  for  murder,  and  put  on  his  trial 
the  last  day  of  last  term,  and  the  jury,  after  (he  court 
had  gone  from  (he  bench,  bu(  without  adjouitiing,  sepa- 
ra(ed  without  giving  any  verdlcl ;  and  now  it^\agmo\ed 
by  the  Attorney-Genei'di  that  hcinight  he  again  put  upon 


Haywood's  kepouxs.  278 

his  trial,  and  he  citi  d  RVyng  42,  52.     Foster  27,  29,  76.  Oct.l795. 
//.  H.  1\  C.   294.  295.:    E  covtra   were  ( ited    //  P.  C.  ^^'^'^-^ 
verbo  verdict,  c.  47.  s.  ),p.  439.  wlicro  it  is  said  to  have 
hern  held  lor  law  e\<r  since  the  Rivtdiilion,  that  a  jury 
caiMiDt  be  discharged  in  a  capital  case  without  givintj  a 
verdict. 

Per  curiam — The  rule  as  laid  down  in  3  Co.  Inst.  110, 
and  1  Inst.  227,  is  general  and  witliou'  exceprioM.  that 
a  jury  in  a  capital  case  cannot  be  discharged  without 
giving  a  verdict;  aCteiwards  iiowevcr.  in  the  reigns  of 
the  latter  sovereigns  of  the  Stuart  family,  a  dilTerent 
rule  prevailed,  that  a  jury  in  sncli  case  might  be  dis- 
charged for  the  purpose  of  havingbciter  evidence  agaitist 
him  at  a  I'ufni-e  day  ;  and  this  po«ei-  was  exercised  for 
the  benefit  oflho  crown  only:  but  it  is  a  doctrine  sn  ab- 
horrent to  every  pi'inciple  of  safety  and  S'Curity,  tiia'  it 
ought  imt  to  receive  the  least  cniintenanre  in  tltir  cnnrts 
of  this  counti-y-  In  lb''  time  of  James  the  second,  and 
since  the  lievolution.  this  doctrine  came  under  examina- 
tion, and  the  rule  as  laid  dow  o  by  L.Cokc  was  icvived  w  ilii 
tiiis  addition,  that  a  jury  sliould  not  he  discharged  in  a 
capital  case,  unless  lor  the  l)emfit  >)(  tiie  prisonei- ;  as  if  (942) 
the  prisoner  be  a  woman  and  bo  laken  in  labour  ;  or  if 
the  prisoner  after  the  juiy  are  charged  with  him,  be 
fonn«l  to  be  insane,  and  ilie  like  ;  or  if  at  the  prisoner's 
request,  a  Jury  be  withdrawn  to  let  him  in  to  take  the. 
benefit  of  an  exception,  which  otherwise  he  would  have 
lost,  as  in  the  case  of  Foster.  In  the  present  case,  the 
Jury  were  suffered  by  the  couit's  officer  to  separate  witli- 
out  giving  a  verdict;  as  tiiey  could  not  agree  to  convict, 
it  is  strong  evidence  of  the  parly's  innocence  ;  and  per- 
haps he  could  not  be  tried  again  with  the  same  advan- 
tage to  himself  as  then.  Perhaps  his  witnesses  are  dead, 
or  gone  away,  or  their  attendance  not  to  be  pi-ocured.  or 
some  accident  may  |)revcnt  their  attendance.  We  will 
not  again  put  his  life  in  jeoparily,  more  especially  as  it 
is  very  improbable  wc  sliall  be  able  to  possess  him  of  the 
same  advantages — So  he  was  iliscbarged. 

NoTS. — Vide  Slate  v.  Spur,  1  Oct.  Hep.  191,  in  which  this  rasp  is 
recognized  and  confirmeil. 


HAYWOOD'S    KEPOKTS. 

State  V.  Alexandpr  Wilson. 

A  burglary  may  he  coinmittcd  in  .•>  store  house  standing  iwenty-lbur 
yards  trom  the  dwi-liing  house,  ;ind  separatrd  therrfrom  by  »  fence, 
if  the  owner  or  his  servsnta  sometrnus  sleep  therein. 

Ho  was  iiidicted  for  biirglarioii«ly  bfi-Mkiiier  ami  cntcr- 
in,e:  'lie  dwellint;  lioiise  of  one  Lnwrence  Smith,  in  Ilic 
iil,ti;lit  time,  and  stealitie;  from  tlipiicp  a  niimbpr  of  picrcs 
of  hard  innnoy.  &(;.  Upi>n  Hit-  evidenre.  it  app'^an-d  that 
the  house  whirli  was  brnkeri  open,  was  a  siort'  house, 
standing  at  (he  distanre  of  twenty-fmii-  yards  Iroin  the 
dwelling  house  of  Smith,  separateil  thert'from  by  a  fence, 
anti  that  it  tlid  not  stand  in  his  yufd.  The  oihor  facts 
necessary  to  support  tiie  indictment,  were  well  enough 
proven. 

Per  curiam.  With  rcsprct  to  the  term  dwelling  house, 
as  n--e(l  in  :in  indicinient  f'>r  Imrglary,  it  hatli  a  technical 
meaning,  not  that  meaning  which  is  annexed  to  it  in  com- 
mon aceptation.  All  out  hotises  stairding  in  the  same 
yaid  wiih  the  dxselling  house,  and  used  by  the  owner  of 
the  dwelling  house  as  appurtenant  thereto,  whether  'he 
yard  be  open  or  em  losed,  are  in  the  eye  of  the  law  parts 
of  the  dwelling  house  ;  and  will  satisfy  that  word  used 
in  an  inilicttnent  of  burglary.  So  if  a  store  house  stand 
out  of  the  yard  and  ciirlilage,  and  be  separated  theri'froin, 
but  the  owner  or  his  seriants  sotnetinies  sleep  iherein.  it 
is  in  law  a  dwilling  hotise.  1  H.  H.  P.  C.  557.  And  here 
it  being  proved  bv  Solomon  Smith,  that  he  acted  as  the 
store  keeper  of  Lawrence  Smith,  and  as  his  ser»aiit,  wnd 
that  he  had  frequently  slept  in  this  house  tliroiith  the  fall 
in  which  the  breaking  was  coniinilted,  if  the  jury  believe 
the  prisoner  is  the  person  who  broke  tin  house,  and  stole 
{Jt43)  fl'P  money  as  laid  in  the  bill  of  indictment,  they  on^ht 
to  find  him  guilty  of  the  burglary.  He  was  found  guilty 
accordingly,  and  had  judgment  of  death  ;  but  the  Gov- 
ernor panloned  hitn. 

Note.— ride  Utatc  v.  TwitU,  ante  102.  State  v.  Langford,  1  Dn. 
/?e/..  253.  •' 

Anonymous. 

The  words  of  «  will,  directing  all  just  debU  to  be  paid,   will  prevent 
the  bur  of  the  statute  of  limitations. 

One  of  the  questions  in  this^case  was,  whether  the 
Plaintiff  was  barred  by  the  act  of  limitations.     The  note 


HAYWOOD'S    KEPOUTS. 


280 


of  hand  was  given  in  the  year  1783.  in  Ihe  month  ofO<=t.l~95. 
Ocl'hcr  or  November.  An  action  was  biouglit  seven '^'"'^^^ 
01*  eight  years  attei ,  iiut  in  the  mean  time  Deteiuliitit  died, 
not  long  bcloie  liie  coninieiicenient  of  ibis  suit,  and  by  his  .  ^ 
\\ill  ill  one  |iait  thereof  said,  aftei-  Jiayineiit  of  all  my 
jus!  dt  bts,  ihfii  I  give,  &c.  Per  curiam — Tiie  act  of 
lirniiatioiis  was  made  to  (ii-event  tlie  inconvenience  of 
stale  deinaiiil.s,  and  to  hinder  tbcin  after  a  leasonable 
length  (if  time  from  rising  iip  to  charge  him.  'I'his  law 
thioigh  very  generally  reprobaied,  is  foniuied  upon  |irin- 
ciples  of  jnsiice,  and  ought  to  be  adhered  to  ;  and  had 
the  act  never  received  an  interpretation  wliif  h  might  go- 
vern the  presHiit  rase,  the  court  Would  now  be  of  opinion, 
that  the  using  of  sucii  vvoriis  in  a  man's  will,  ought  not 
to  pri'vent  the  operation  of  that  act,  for  that  they  arc 
wonis  common  in  almost  all  wills  :  but  these  words  by 
former  dei  isions,  have  been  lield  to  have  that  ctfect,  for 
the  executor  without  such  words  is  bound  to  pay  ail  re- 
coverable debts  ;  but  these  words  are  supposed  to  bind 
liiin  10  something  fiiitlii-r — the  payment  of  all  just  debts, 
2  P.  H'il.  373.  Sulk.  154.  2  Vern.  141.  whether  recover- 
able ai  law  or  not,  and  are  deemed  to  mean  more  than 
the  law  lays  upon  the  exfcutor  without  any  such  words 
used.  The  Plainiifriiad  a  verdict  and  judgment.  Baker 
for  Plaintiff,  and  Davie  for  Defendant. 

Note. —  Quere,  wln-tlicr  tliis  case  is  not  overruled  by  the  case  of 
Walker's  Ex'rs.  v.  Campbell  iJ  others,  1  Hawks.  304,  in  wliich  it  was 
held,  that  a  ikbl  banvd  li)  tlic  si.itiite  ol  liniiiations  Is  not  revived  by 
a  direction  in  the  ilebin's  *il:,  ihut  certain  slaves  be  sold  "  and  witli 
the  i<roceeds  liiere  t,  after  paying-  my  debts,  they,"  See.  See  also 
Burke  v.  Junes,  'Z  Fes    Q  Seam.  '275. 

Susannah  Winstead  v.  the  Heirs  and  Terretenants  of 
Richard  Winstead,  deceased. 

A  widow,  since  the  act  of  1784,  can  claim  d'lwer  only  out  of  the  lands 
of  which  the  hu:ibund  died  seised  or  possessed.  A  levy  upon  lands 
in  the  lilenme  of  the  hushand  divests  tlie  widow's  claim  tor  dower 
upon  those  lands,  though  tliey  may  not  be  sold  untd  alter  his  death. 

TIlis  was  a  pt-tilion  for  dower,  drawn  according  to  the 
directions  of  ilie  act  of  1784,  c.  22,  s.  9,  and  the  counsel 
have  agreed  to  this  special  case,  ffinstead  possessed  of 
the  premises,  was  stud,  and  a  judgmeot  was  obtained 
against  him  in  Eitgei  omb  Cotiniy  Court  ;  an  ex'.cution 
issued,  and  the  Sheriff  levied  oti  the  land  and  other  [iro- 


.31  Haywood's  reports. 

()jt.  1/95.  pp,.(y  a  few  <]ajs  boFon^  iliediatli  of  Ifinslead  ;  prid  after 

'-'"^''^^^  Ills  (li'a;li,  the  |)ersiiiial  |irnperty  iioi  being  mifliiirni   to 

satisfy  til'- di-bt,  Im '  sold  the   land,   and   the   Derciidaiit 

^       i>H7ic«riD(;w  pufcli'.tsed.     The  qiirntion  is.  as   ilir  ims- 

haiid  died  hiiice  ir84,  whether  tlie  Plaiiititr  is  iiililled  tu 

{J2.44)    (i„^c,., 

Thia  spocial  case  was  iiiade  nii  account  of  a  diflFei'cnce 
ill  .ipinion  hctwecn  Jiid.s;c  Williams  and  Jnd^c  Hav- 
woon.  Tlif  latter  beini(  clearly  of  "niiiiun  she  was  oof. 
entitled  to  her  dowir  ;  the  other  being  very  clear  tiial 
she  was  cnlitlerl. 

The  following  is  tlie  opinion  of  .lodge  Haywoou, 
transinitK'd  to  the  court — Judge  Williams  sent  none. 

The  two  questions  here.  are.  whetlnr  a  widow  be  en- 
titled to  dower,  in  lands  of  v\  hich  her  husband  died  seised 
or  pOHSfSsed  only  ;  <ir  whether  she  he  eiititl<-d  as  at  cou)- 
mon  law  to  dower,  in  all  the  lauiis  of  which  the  luishaud 
was  seised  during  tlie  coverture  ;  and  secondly,  whetlici' 
Janfis  are  evicted  out  of  the  possi-ssiuu  of  the  debtor,  by 
the  Sheriff's  levying  ail  execution  upon  them  in  the  lil'c- 
lime  of  ihe  debtor. 

As  (()  the  first  point,  it  was  a  principal  object  of  this 
act  to  lake  off  all  restraints  from  the  alienation  of  lands, 
to  the  end  that  this  sppcios  of  property  migiit  be  accum- 
ir.odaied  to  (lie  purpose*  of  individiirils  engaging  in  use- 
ful uiidei'takiiigs,  and  to  tiie  principles  of  a  Republican 
goveriiiiienl.  Tliis  act  destroys  estates  tail  entirely,  and 
in  oriler  to  enable  husbands  to  convey  their  lands,  free 
''■  from  the  incumbrances  of  the  w  ife's  claim  ofdower,  it  di- 
rcciw  tiiat  this  claim  shall  commence  for  tlie  future,  IVoin 
l)ie  (le-aih  ol  the  iiusband  ;  making  a  provision  for  her 
against  uniair  conveyances,  made  by  the  husband  with  in- 
tent lo  delratid  her  of  her  dower  ;  which  plainly  disco- 
vers the  meaning  of  the  Le.mislalure  to  be,  that  with  res- 
pect lo  f.iir  conveyances,  she  was  not  entitled  to  dower — 
wbicii  point  at  once  pro\cs  and  estMlilishes  the  doctrine, 
thrtt  dower  at  the  common  law  is  aliolished  ;  for  by  tiic 
comiiion  law,  ihe  widow  was  entitled  to  dower  in  all  the 
lands  the  husband  sold  alter  the  coverture  ;  whereas  now, 
she  cannot  <iaim  dower  in  them  i)' fairly  sold.  If  a  wife, 
can  yet  claim  dower  at  the  common  law,  the  husband 
cannot  convey  his  lands  free  from  incumbraiicrs,  and  the 
object  of  the  Legijilalure  is  not  attained.     An  affirmative 


may.wood'8  reports.  282 

act,  if  U  imply  a  negative,  may  operate  as  a  repealing  0=*' IT'QS. 
act — now  if  a  widow  since  the  passing  of  Hie  act  of  1784,  ^•^"^'"^^ 
is  to  iiave  dower  in  tlie  lands  her  husband  died  seised  of, 
it  seems  to  follf)w,  she  is  not  entitled  to  dower  in  lands 
he  did  not  die  seised  of:  otherwise  svliere  was  the  use  of 
saying  she  should  have  dower  out  of  those  lands  he  died 
seised  of.  If  she  is  still  entitled  to  dower  at  tlie  common 
law,  ilie  wliole  of  the  eighth  section  of  the  act  of  1784,  is 
nugatoi-y  and  of  no  signification — the  first  thing  it  pro- 
vides is,  that  slie  shull  have  dower  of  tiic  lands  he  died  (245) 
seised  or  possessed  of — she  was  entitled  to  that,  at  the 
common  law.  It  next  provides  against  fraudulent  con- 
veyances to  defeat  her  of  her  dower — tlie  commmi  law 
entitled  her  as  from  the  time  of  the  marriage,  and  any 
subsequent.conveyauce,  whether  fair  or  unfair,  was  sub- 
ject to  Iter  dower.  Thus  the  whole  clause,  is  useless  and 
vain — hut,  if  it  is  alterative  of  the  old  law,  then  every 
word  has  its  full  effect  atid  operation  :  and  surely  a  con- 
struction that  gives  some  effect  lo  every  word,  is  much 
preferable  to  that  which  destroys  a  whole  clause. 

If  it  be  said  the  act  intended  to  create  a  species  of  dow- 
er different  from  that  at  tiie  common  law,  allowing  the 
widow  in  some  respects  greater  advantages,  though  less 
in  oiiicrs,  and  to  give  her  choice  either  of  the  one  or  the 
other,  I  ask,  where  is  the  authority  for  such  a  supposi- 
tion ?  The  act  speaks  of  no  such  election,  nor  is  there 
any  reason  foutided  in  the  spirit  of  the  act  to  presume 
such  to  liave  bi'en  the  intention.  And  besides,  the  last 
clause  of  the  act  of  1784,  expiessly  repeals  all  laws  that 
come  within  the  purview  of  that  art :  whereby,  as  I  un- 
derstand it,  all  laws  providing  for  the  same  cases  that 
are  provided  for  by  the  enacting  part  of  tiie  act,  are  re- 
pealed ;  and  this  expressly  takes  in  the  common  law  res- 
pecting dower.  I  am  therefore  of  opinion,  that  since  the 
act  of  1784,  c.  22,  a  widow  is  only  entitled  to  dower  out 
of  lands  her  husiiand  died  seised  w  possessed  of,  and  can- 
not have  it  out  of  lands  lie  dies  seised  of  during  the  co- 
verture, but  conveyed  away  before  his  death. 

As  to  the  second  point,  whether  lands  are  evicted  out 
of  tiie  possession  of  the  ilebtor  by  a  Sheriff's  levying  an 
execution  upon  them  in  the  lifetime  of  the  debtor  ;  for  if 
they  are,  then  the  Plaintiff's  husband  was  evicted,  and 
so  not  seised  and  possessed  at  the  time  of  his  death,  as 
the  act  requires.     I  think  there  can  be  no  doubt,,  but  that 


283  Haywood's  reports. 

Oct.  1795.  f|,p  coinple<in,a;  art  of  an  exeiution,  hath  relation  to,  aiffl 
"^'^''''^^  effect  from,  the  time  of  the  lien  occasioned  by  the  jmlg- 
cienl,  or  the  cxicution  attaching  on  the  property  :  or  in 
other  woids,  thiit  e\rry  sale  upon  nji.fa.  hath  relation 
to  the  tesre  of  the  writ,  and  is  a  .sale  from  that  time  ;  if 
not,  in  the  ca-se  of  lands,  from  the  time  of  the  judgment, 
and  every  extent  upon  an  elegit  is  an  extent  from  the  time 
of  the  judgment  reiideied.  The  reason  of  this  fi(  lion  is 
founded  injustice — it  is  for  the  purpose  of  jjreventing  sub« 
sequent  incunibiances  interfering  with  the  interests  of  the 
fnAQ\  Plii'niiff,  who  migiit  be  <lefciited  of  his  debt,  if  such  sub- 
^  '  sequent  incumbrances  were  allowed  to  have  priority  to 
sales  liappening  afterwards,  though  the  executions  had  is- 
sued btfore.  For  this,  or  some  such  reason.  I  presume  it 
is,  that  in  every  case  wiiere  the  law  makes  a  lien  to  take 
place  on  the  property,  whether  real  or  personal,  (he  exe- 
cution is  gooil  from  that  lime.  In  the  case  of  a  recove- 
ry of  a  real  estate,  the  recoveree  died  before  execution 
issued,  yet  as  the  judgment  was  as  of  the  fii st  day  of  the 
term,  tmd  the  execution  also,  the  execution  wlien  execu- 
ted, \  ested  the  |)roperty  in  tiie  recoverer,  as  from  the  time 
of  the  judgment  ;  so  that  the  reroveree  was  divested  of 
the  possession  and  seisin,  as  from  the  first  day  of  the 
term  when  the  judgment  was  given,  1  Rep.  106,  b,  iiihel- 
ley's  case.  When  a  judgment  is  recovered  in  debt  against 
(he  ancestor,  if  a  sci.fa.  be  taken  out  against  the  heir, 
and  others  terretcnants,  this  sci.fa.  goes  against  the  heir 
as  a  tcrretenant,  and  not  as  heir  ;  because,  the  land  be- 
ing bound  by  the  judgment  against  the  ancestor,  is  in  ctts- 
todiii  legis,  and  descends  not  to  the  heir;  and  if  under 
such  circumstances  the  heir  gets  po.ssession,  he  is  treated 
as  a  terretenant.  .T  Rep.  Herbert's  case.  In  the  case  of 
Baker  and  Long,  decided  in  this  court,  one  of  the  two  par- 
cels of  land  laid  in  the  declaration,  was  sold  under  a 
judgment  given  against  the  ancestor  in  his  lifetime;  the 
otiiei  parcel  und<  r  a  judgment  against  the  executors,  and 
by  the  judgment  of  the  court.  'I'he  Plaintiff  recovered 
the  latter,  and  lost  the  former,  because,  (he  judgment 
against  the  ancestor  had  evicted  the  lands  out  of  his  pos- 
session so  far,  tiiiit  they  did  not  descend  to  the  Plaintiff. 
In  the  case  of  an  execution  bearing  teste  befoi-c  the  death 
of  a  testator,  but  not  executed  nor  even  levied  till  alter, 
it  may  be  lawfully  exiTuted  ;  because  the  lien  on  the  goods 
commenced  with  the  teste  of  the  writ,  antl  the  legal  pos- 


Haywood's  REPonTa.  284 

sessibn  of  the  goods  arc  from  that  time  in  ctistodia  lesns,  Oct  I'Si. 
and  are  not  in  the  possession  of  tlie  exeruj^ni  ;•«  xei'ntor.  '»^'^''^*^ 
2  L.  Ray.  849.  850.  Bni  if  the  teste  <if  the  wiii  ot  exe- 
cution be  after  the  death  of  Uie  testator,  theie  the  tcoods 
in  tiie  hands  of  the  exernior  eannot  hi-  toiichfd.  3  P.  Wil. 
where,  it  is  held  by  Lord  Parker,  that  iht  possession  of 
the  goods  are  evicted  out  of  the  hands  of  tlie  testator  in 
such  case,  by  the  teste.  Consider  it  upon  the  reason  of 
the  ihinq;.  if  the  levying  the  execution  will  not  e\ii't  the 
possession,  then  what  will  ?  Will  the  sale  by  the  Sheriff 
do  it  ?  The  Sheriff  lias  no  right  to  gi>e  possession. — 
The  actual  corporal  possession  may  siill  he  held  by  the 
debtor,  but  the  sale  passes  the  fee  and  all  the  interest  that  (aA7\ 
the  debtor  hath.  If  it  is  the  sale,  or  the  levying  either,  "^  •' 
that  works  a  legal  dispossession,  tin  n  the  law  no  hniger 
governs  property  in  these  cases,  but  (he  Sheriffs  in  the 
different  counties  ;  for  the  Slieriff  l»y  d-'layitig  to  Ic^y  and 
sell,  or  by  forwarding  the  levy  'iiid  sale,  v\ill  iiKike  the 
•widow  to  he  entitled  or  not  to  dower,  and  the  creditor  to 
lose  part  of  his  debt  or  not.  Suppose  in  the  present  case 
it  had  pleased  the  Sheriff  to  sell  oti  the  day  he  levied, 
then  she  would  not  have  been  entitled  to  thiwer ;  but  as 
he  has  sold  after  the  dea'h  of  the  husband,  slic  is  entitled. 
This  involves  such  an  absurdity  as  cannot  be  enduted. — 
Most  clearly,  the  rights  of  the  widow  «lo  not  depetid  op- 
en the  good  pleasure  of  the  officer  ;  the  law  un<loub!>  dly 
hath  fixed  them  upon  a  better'  foundation  ;  the  law  makes 
the  lien  of  an  execution  against  latids,  to  comment  e  from 
the  teste  of  the  wi-it  :  and  were  it  not  for  the  case  of 
Bell  and  HilL  I  should  think  Irutn  the  judgment ;  ami  to 
that  all  subsequent  acts  have  relatioti ;  so  tliat  the  pur- 
chaser is  in  as  from  that  time,  and  of  courSe,  has  all  the 
interest  that  the  debtor  had  as  from  a  lime  prior  to  his 
death.  Like  the  case,  where  a  testator  by  his  will  em- 
powers  his  executors  to  sell  his  land,  and  after  his  death 
the  executor  sells  accordingly,  the  vendee  is  in  by  the  tes- 
tator. The  law  deems  it  a  sale  by  the  devisor  himself, 
for  the  purpose  of  over  reaching  (he  descent  to  the  heir. 
Plow.  Com.  475.  The  possession  of  the  heir  in  that  case, 
after  (he  death  of  (he  devisor  and  before  tlie  sale,  is  just 
such  a  kind  of  possession  as  that  of  the  husband  in  the 
case  now  before  us  was,  alter  the  teste  of  the  execution  or 
perhaps  the  judgment,  of  no  consideration  in  law,  when 
a  sale  doth  in  fact  altei waids  take  jilace.  Let  us  sup- 
ppse  another  case.    If  a  man  devise  that  his  execiitoj' 


(248) 


285  Haywood's  reports, 

Oct  179S.  gjjgjj  ggj]  jjjg  \nx\69,  and  die ;  and  after  his  death  his  hfeip, 
'"^"'^'^^  who  is  a  nnai  ried  man,  enters  and  dies,  and  afterwards 
the  executors  sell  pursuant  to  the  will,  wonid  the  wife  of 
the  heir  be  entitled  to  dower  ?  Surely  she  would  not. — 
Yet  ill  tliis  case,  the  licir  was  as  much  seised  of  the  land  ■ 
and  inheritance  as  the  liusband  was  in  the  case  now  before  I 
us>  But  in  both  cases,  the  seisin  and  possession  of  the 
husband  and  heir  vanish  away  when  the  sale  takes  plare, 
because  then,  the  purchaser  is  in  ;  in  the  one  case,  from 
the  devisor  immediately,  and  in  the  other,  from  the  com- 
mencement of  tho  lien  upon  the  land  :  and  whetiier  that 
commence  with  tlie  judgment,  the  teste  oftlie  writ,  or  the 
levying,  each  of  these  preceded  the  death  of  the  husband. 
I  have  no  doubt  but  that  judgment  should  be  fur  the  De- 
fendant, the  vendee. 

In  October,  1796,  the  cause  was  again  moved,  tiie  Jud- 
ges Mac'at  and  Stone  being  present  :  but  Judge  Ma- 
cat  not  being  prepared  to  give  his  opinion,  the  cause  was 
adjourned.  It  was  afterwards  moved  when  Judge  Wii- 
XIAMS  was  present,  who  inclined  to  change  his  former 
ojiinion — afterwards  the  cause  went  off  w  ithout  a  decision. 

Note. — This  case  was  supported  by  the  present  Supreme  Court  in 
Badges  v.  McCabe,  3  Bawks  tS,  but  overruled  by  Frost  (i  Wife  v. 
JUhiridge,  1  Dev.  Rep.  30.  When  a  person  conveys  his  lands  in  rust 
to  satisfy  creditors  but  continues  in  possession  till  his  death,  his 
widow  is  not  entitled  to  dower  therein.  Taylor  \.  Parsley,  3  BarwJtt 
125. 

V.  D  cherry. 

Case.     For  nuisance  in  erecting  a  mill.     Per  curiam,      ' 
Hatwood  only  present — This  action  will   be   for  every 
fresh  continuance  after  a  former  action  brought.     It  is 
not  usual  to  give  heavy  damages  in  the  first  verdict,  that 
is  chiefly  to  ascertain  the  fact  whether  nuisance  or  not. 
If  the  party  afterwards  remains  obstinate  and  a  second 
action  becomes  necessary,  there  the  damages  are  usually 
high.     There  is  some  evidence. of  the  assent  of  the  Plain-       . 
tiff's  father,  that  Defendant  might  build  the.  mill;  and      j 
of  a  subsequent  agreement,   that  the   Plaintiff's  father 
would  rest  satisfied  if  the  Defendant  would  rut  down  the 
dam  to  seven  and  an  half  feet  ;  but  as  no  land   can   be 
conveyed  withoui  deed  or  other  notorious  acts,  so  a  man's 
lands  cannot  be  chai-ged  by  any  matter  of  less  solemnity. 
A  licence  to  overflow   a  man's  land  by  a  mill-pond, 


Haywood's  iieports.  286 

lop  this  reason,  \h  not  good  if  only  vcrhally  griven— and  Mar. 1796. 
this  to  avoid  (lie  (lan,e;cr  of  chaining  or  afiectinga  man's "'"'"^"^^ 
real  property  by  suboiitrd  owths. 

Note. — Upon  the  first  point  resolved  in  this  case,  see  to  the  sume 
effect  Cuiru/Afrs  v.  Tillman,  pout  301.  The  -jct  of  1809,  Rev.  c.  773, 
points  ')ut  anew  made  <)(  o!itaining  redress  where  lands  xTe  overflowed 
by  a  mill  pond,  which  tikes  aw:iy  the  cominon  hiw  ritrht  ol  sninjy  un- 
less in  the  case  spenified  by  the  act.  Mumford  ii  others  v  Terry.  2 
Car.  Law.  Hep.  4'..'S.  In  procei-diiig'  under  the  act  of  1809,  iC  the 
Defcndani  dies,  the  hnirs  cannot  be  made  parties,  and  the  suit  must 
abate,  Fellow  v.  Fulghaiv,  3  Murph.  254.  'With  i  egard  lo  the  llci  nse 
see  Cook  ■v.  Stearns,  11  Mims.  liip.  533,  cited  in  the  3d  ^im.  Ed.  of 
Comyns  on  Cont.  80,  where  it  is  siiid  that  a  -lerb:.!  license  may  excuse 
a  trespass  upon  lands,  though  it  cannot  convey  any  permanent  interest 
in  them.  The  distinction  Fee  ms  to  be  t'oundedin  justice  and  does  not  at 
all  trench  upon  the  rule  of  law  which  requires  interests  in  land  to  be 
conveyed  by  deed.  A  license  to  overflow  a  m;'n's  land  by  a  mill, 
pond  would  create  no  penn.inert  right  or  interest,  if  only  verbdly 
jjiven  ;  but  if  the  praniee  of  the  license  does  the  .ict,  surily  he  miiy 
justify  when  attempted  lo  be  treated  as  a  trespa,-'~er.  ll  is  true  the 
license  may  be  cuuntermanded,  and  tlien  the  praiMee  must  forbear,  or 
he  will  make  himself  from  that  time  (what  he  would  have  been  with- 
out a  license)  a  trespasser. 

HEWBERN,  MARCH  TERM,  1796. 

Den,  on  the  demise  of  Siade  v.  Nathan  Smith. 

.\n  actual  possession  is  not  necessary  to  prevent  the  operation  of  the 
statute  of  limitations  until  an  adverse  p(is-.ession  conimencus,  which 
adverse  possession  must  be  a  cnntinned  one  for  seven  \eais  to  bar 
the  Plaintiff.  A  deed,  which  is,  in  form,  a  bargain  and  sde,  except 
that  the  consideration  is  expressed  to  be  love  and  affection,  in- 
stead of  money,  may  be  construed  a  covenant  to  stand  seised.  It 
seems  that  judicial  proceedings  spe.iking  of  an  act  of  Assemhly, 
may  be  evidetice  of  such  act  when  it  is  lost  by  lime.  A  bare  right 
of  entry  cannot  be  transferred.  * 

Ejectment.  For  360  acre.s  of  land  on  the  North  .side  of 
Trent  river,  beginning  at  tlte  month  of  <\  creek,  then  d-Avn 
the  river,  thence  by  a  line  at  nearly  right  angles  from  ihe 
river,  and  so  round  to  the  creek,  and  down  the  creek  to 
the  beginning.  The  Pliuntiff'.s  title  was  deduced  thus, 
the  Lords  Froprietms  »n  the  12th  November,  1713, 
granted  to  James  Castnge;  he  died  under  age  and  \\  itiiout 
issue,  leaving  an  only  sister  June,  married  to  Finya7V  ; 
whom  she  survived,  and  in  the  year  1764,  she  conveyed  to 
her  son  James  Finyaiv.  He  on  the  24th  March,  1791, 
conveyed  to  the  lessor  of  the  Plaiiititf,   tiie  whole  three 


287  uaywood's  rgforik. 

Mar.ir96.  hundred  and  sixty  acres  drscribins  it  by  the  botimlaries 
^^"^'''^~'  m' iilixiicd  ill  tlic  oii(»inal  t^rafit.  Tliis  actiim  W's  com- 
imtKid  in  the  niniitli  1)1"  A|iril,  in  the  yt;ar  1791.  On 
the  put  iif  the  DiTcndaiHs  it  was  jn-oven  by  an  old  deed, 
dated  the  lOtli  i)f  January.  iri4.  ami  by  the  recoid';  of 
flic  c(Hirt  of  orphans  of  the  same  year,  that  one  Brice, 
(249)  gnardiaii  of  til.' _a;iMuti'e  Casi(/.fe.  had  by  |»pimissiiin  of 
the  court  of  orphan^;,  sold  one  iiuiidred  and  sixty  acres 
of  this  land,  beginnine;  at  the  lower  coi'iier  tree  un  the 
river,  running  up  the  rivei',  and  then  into  the  woods  for 
Coiii|tlenient.  A  deed  of  i744,  and  another  of  1 764.  were 
prodiK  ed  ;  in  the  Utter  of  which  Mr.  Cornell  was  n  party. 
These  proved  that  the  second  line  of  this  tract,  and  'he 
third  corner,  were  deemed  at  those  periods  to  he  tlieiine 
and  corner  of  Vassimore,  the  bari^aince,  who  purch.ised 
of  th<' guardian  5  whereby  tlie  location  of  the  l60  .iciieS 
wa'*  confined  t<i  the  lower  part  of  the  tract.  On  tii  part 
of  tlie  Deft  iidaiit  it  waK  further  proven,  tliat  on  the  23d 
of  July,  177-1^,  -Mr.  Cornell  obtained  a  giant  lor  a  large 
part  of  this  tract  of  land,  ailjoining  the  river  and  creek, 
and  that  in  fiie  spring  of  the  year  1775,  in  tlic  month  of 
April,  he  took  possession;  wliich  hath  been  conliniied 
evei-  since  ;  first  by  Edwards,  bis  son-in-law,  and  by  bis 
widow  and  her  children  since. 

Davie,  the  counsel  for  the  Defendant,  argued  that  as 
there  was  no  evidence  of  possession  in  the  Finyayos,  for 
a  great  length  of  time  preceding  the  entry  of  Cornell,  that 
then  lore  ConjfW's  entry  bad  taken  away  FiHi/aw's  right 
of  possession.  For  when  a  grantee  has  not  had  posses- 
sion for  seven  years  before,  and  another  claimant  entei*s, 
as  Cornell  did  in  this  case,  the  act  of  limitations  will  toll 
tl\e  entry  of  such  person.  Seven  years  passing  without 
an  entiy  on  the  part  of  the  first  grantee,  and  another 
person  then  found  in  (lossession,  toils  tlie  grantee's  right 
to  turn  tlie  otbei-  out  of  possession — his  right  of  posses- 
sion is  lost — there  is  no  necessity  under  tlic  act  that  the 
possession  of  the  enterer  should  be  continued  seven  years. 
Fer  curiam — Whatever  construction  may  have  pre- 
vailed ill  England  upon  their  statute  of  limitations,  it  is 
clear  \Nitli  resjiect  to  our  act,  when  a  man  hath  obtained 
a  grant  of  land,  he  thereby  gains  a  constructive  posses- 
sion, which  Continues  until  an  actual  adverse  possession 
coninieiices,  and  'hut.  adierse  possession  must  be  con- 
tinued seven  years,  before  the  jus  intrandi,  or  right  of 


HA.YW001)'S  REPORTS.  288 

possession  of  the  first  grantee,  is  lost.  A  single  act  ofM"'  l^^^- 
entry  cwiriot  takeaway  tlie grantee's  riglitofpo-isessioo  ;^'^~^^^^ 
because  such  entry  may  be  made  witliout  uny  notoriety, 
whereas  scien  years  actual  possession  affords  notoriety, 
and  as  it  were  calls  upon  the  ownei-  to  asseit  his  right. 
In  the  present  case,  unless  there  hath  been  such  actual 
possession  (or  seven  yeai's,  as  is  allowed  of  in  law  coinpu- 
tation>,  ihe  I'laintiflT's  I'ight  is  not  tolled.  As  to  the  rgso) 
time  (lapsed  between  the  sixth  of  March,  I7"3.  and  first 
of  June  1784,  that  was  not  allowed  of  hy  the  express  di- 
i-ection  of  two  acts  of  the  General  Assembly  ',  and  the 
possession  that  can  be  counted  in  the  present  case,  is  only 
from  the  first  June,  1784.  to  the  time  of  the  commence- 
ment of  tin- action,  whicb  Was  short  of  se\en  years  by 
two  or-  ilirie  Mioiiths.  An  objection  hath  been  made  to 
the  propriety  of  disallowing  tin'  time  bet^veen  the  firs'  of 
M^ich,  17*3,  ami  the  fifKientli  of  November,  1777, 
the  act  of  1777,  only  sa>iiia:  it  should  be  disallowed 
wh''n  pleaded  to  actions  bi-mighf ;  whereas  the  art  of 
limitations  is  never  pleaded  in  this  action  of  ejectm<>Ht. 
The  answer  to  that  is,  ubi  eadem  est  ratio,  ibi  eudem  est 
lex,  the  reasoir  of  that  provision  was,  because  during  the 
time  that  intervened  between  these  two  periods,  there 
were  no  coiir  ts  in  this  country  ;  dues  not  this  reasoir  ap- 
jily  with  eqiral  force  to  air  ejettiiient  caseas  to  any  other? 
A  man  out  of  possession  when  the  law  provides  him  wrtli 
no  means  to  gain  possession,  should  not  have  the  not 
getting  of  possession  dui'ing  that  time  imputed  to  him  as 
an  abandoiimerrt  of  his  piopei'ty,  any  more  in  Ihe  case  of 
a  real  estate  than  in  that  of  a  per'soiial  estate.  What  is 
still  a  more  lull  answer-  to  the  objection  is  this,  that  if 
the  actot  1777,  had  not  been  made,  tire  act  of  limitations 
Would  not  have  run  during  the  time  thei-e  wer-e  no  cour-ts 
in  the  courrtry,  to  whidi  the  Plaintiff  could  apply  for  the 
recovery  of  his  right.  No  laches  in  such  case  could  be 
imputed  to  him,  nor-  could  any  presumption  be  I'oirnded 
upon  Iris  delay,  as  there  is  in  all  cases  where  tire  act  applies. 
'I'lic  court  hei-e  cited  Co.  Litt.  iir  Iris  chajjtt  r  of  Entries, 
whi're  it  is  laid  down,  that  a  descent  cast  itr  time  of  war, 
will  not  toll  the  entry  of  him  who  hath  the  right  ol entry, 
because,  sailh  the  book,  wliere  the  courts  are  not  open 
for  the  administration  of  justice,  whether  occasiorred  by 
relrellion,  iirsurrectiori  or  foreign  invasion,  it  is  said  to  be 
tirao  of  war,  and   laches  are  not  then  imputable  to  the 


289  HAYWOoD'a  reports. 

Mar,  1796.  party.  So  here,  tlio'  tlie  act  liad  ridt  been  made,  the  in- 
'^■^'^''^^m^  tfivi'iiiiig  time  was  such  as  coiihl  not  subject  tlie  Plain- 
tiff to  tiie  imputation  of  laches.  He  could  not  in  that 
time  assert  his  rigiif.  The  courts  of  justice  were  shut  up 
as  to  the  possession  of  Edwards.  In  seneral,  it  is  very 
much  to  be  doubted  whetlier  such  a  possession  had  it 
continued  for  seven  years,  i:oul(l  ha\e  tolled  the  entry  of 
the  owner — he  had  no  deed  nor.  any  colour  of  title:  but 
it  is  unnecessary  to  tjive  any  opinion  ujhhi  this  poinlrnow. 
The  Defendant's  counsel  (hen  proceeded  to  state  other 
,  .  objections  to  the  Plaintiff's  recovei-y — lie  argued  that 
^  ^  the  words  used  in  the  deed  from  Jane  Finyaw  to  her  son, 
wei-e  give  and  grant  ;  and  the  consideratimi,  natural 
Jove  and  aflei  tion  :  it  thei'efure  could  not  be  a  bargain 
and  sale,  for  want  of  a  valuable  consideration,  and  tliere 
were  no  words  made  use  of  to  shrw  th'*  intent  of  tiie  par- 
ties, thnt  it  should  o|ierate  as  a  covenant  to  stand  seised  : 
therffiire  it  must  iiave  been  intended  as  a  common  law 
conveyance,  and  then  it  w:is  void  for  waiit  of  livery  and 
seisin.  He  ciied  2  Bl.  Com.  310,  316.  311,  227.  This 
was  answered  on  tiie  part  of  the  Plaintiff,  by  citing  5 
Bac.  Jib.  362.     2  H'ils.  22,  7B. 

Per  curiam — There  is  no  doubt  but  that  the  convey- 
ance in  till-  present  case,  do''s  operate  as  a  covenant  to 
stand  seised,  ut  res  magis  valeat,  and  therefore  that  it  i$ 
good  in  law. 

The  Defendant's  counsel  then  urged,  that  thougli  there 
was  no  act  of  Assembly  to  be  found  in  any  of  the  printed 
books,  previous  to  the  date  of  the  deed  from  Brice,  the 
guai-dian,  to  Vassiiwire,  in  17'14,  and  to  the  pnxteeilings 
of  the  Oi-phati's  Court  in  the  same  year,  the  history  of 
this  country  would  prove  there  were  Assemblies  held  pre- 
vious to  that  time ;  the  Lords  Proprietors  landed  here  in 
1711,  there  are  many  old  grants  bearing  date  in 
1711  and  1712,  and  some  as  early  as  the  year  1706  ;  the 
deed  itself  |)urports  to  be  made  pursuant  to  an  act  of  tlte 
General  Assembly,  and  the  Orphans  Court  on  their  re- 
cord say,  their  consent  to  the  contract  was  given  pursu- 
ant to  an  act  of  Assembly. 

Per  curiam — As  to  this  point  the  genera!  rule  is,  that 
the  court  must  declare  the  statute  law  as  it  is  to  be  seen 
in  acts  and  statutes  yet  extant :  that  law  however,  is 
sonieiimes  from  necessity  ntlierwise  collected.  It  hatb 
been  said  by  very  learned  men,  that  many  parts  of  the 


UAYWOOU'S    UEP0RT9  290 

common  law,  were  acts  of  Parliaiiu'iit  worn  out  by  time.  M  i"^6. 
2  ff'ils.  248  Tlie  ronimo!i  law  i'^  prt'seivcd  and  evideii- "•^'^''''*^ 
Ce«l  l>\  jiuliciiil  proceed  if  ij;'*.  In  the  piesent  case,  there 
aiejuiiicial  piocceditigs  whirh  speak  of  an  act  of  the  Lc- 
gislatu'-e  ihai  is  not  now  extant,  npxi  wiijch  the  deed  to 
Viissimore  iinrpnrts  to  h.>  founded.  'Vlv  deeds  nf  i744 
and  1764,  prove  Vassimore's  having  a  coiner  and  bounda- 
ry line  in  this  tcact  of  land.  This  proves  that  for  a  long 
time  after  the  date  of  Vassimore's  deed,  the  neighborhood 
recognized  it  as  a  \alid  transaction.  All  these  circum- 
stances, hut  particularly  the  jir^ceedings  of  the  Court  of 
O  phans,  seem  to  he  enough  I'l  Justify  t'ne  conclusion  that 
the  act  of  Assemhiy  spoken  of,  ni  the  proceediuj^s  of  tlie 
Orphans'  Court,  did  once  exist  :  but  there  is  no  abso- 
lute necessitv  for  resting  the  cause  upon  this  point;  and  ("jso^ 
as  it  is  a  new  one,  the  court  will  not  give  a  positive  opin- 
ion upon  it.  'I'he  Defend. mi's  counsel  then  made  another 
obje(  tion,  wliich  was,  that  in  1771,  and  for  a  i.'uiisiiiera- 
ble  lime  before,  up  m  April  1775,  Cornell  and  Edwards 
had  been  in  (lie  actual  possession  of  pait  of  the  land, 
namely,  tiiat  part  adjoining  the  river  and  ci-e'  k,  claim- 
ing It  as  their  own  under  a  grant  from  the  King.  As  to 
the  upper  part,  liicy  had  not  been  in  possession,  neither 
had  ilie  Finyaxcs  any  actual  possession  for  fifiy  years 
bark  ;  tliereiore,  as  to  tiio  p.,rl  held  under  the  gram  of 
1774,  Fimjaw,  the  vendor,  in  1791.  at  and  previous  to 
the  lime  of  his  lonveyancc  to  the  lessor  of  the  Plaiii'.ilT, 
hail  no  otiier  means  of  acijuirirjg  tne  possession,  but  by  a 
suit  at  law  ;  he  had  nol  tlie  actual  possession,  but  only  a 
riglit  of  entry  ;  and  tiiat  by  the  known  rules  of  law,  he 
Could  not  sell  or  convey  to  anoiher.  For  this  he  cit.dS 
Bl.  Com.  290.  Co.  Lilt.  214  a,  and  the  case  of  Few  -iiid 
Mves.  decided  at  Hill  borough  last  term.  Oii  ti.e  .>ther 
side  were  cited  /i'spinasse  433,  who  cites  Sulk.  423. — 
Upon  this  point  the  court  were  vMth  the  D  fcndanf.  and 
so  gave  in  charge  to  the  jury.  They  found  the  Dtftod- 
anf  not  guilty  as  to  all  the  land  Comprised  in  Brice's  deed 
to  Viissimore,  and  guilty  fi)r  the  residue  ;  and  there  was 
judgment  accordingly. 

HoTif.—  ViJe  upon  the  fiist  point,  note  to  Strudwick  v.  Shnw.  anteS. 
Park  V.  Cochran  ft  aL  ante  178. —  \riil  m  on  ;  i  .uat,  see  DennitB  v 
Farr.  \  Mnrphey  1;^!?.      Chrh  v.  ^rnoW,  2  Hm-  S87. 


29 1  iiAT wood's  ueports. 

Mar.  1796.  jjgn,  Oil  the  demise  of  Pollock  v.  tlie  Heirs  of 

^■^"^"^^  Zemiriah  Harris. 

when  a  natural  boundury,  and  courses  and  distances,  are  all  given  in 
a  deed,  ihe  natural  boundary  will  prevail  in  cases  of  a  variance  ;  and 
in  doubtful  cases,  a  regard  to  this  preference  must  always  be  ob- 
served. 

Ejectment.  The  patent  under  whirh  tlie  Plaiiitift' 
claimed,  was  tlie  oldest.  It  called  fm-  trees  standing  in 
a  swam|i  at  one  jilace,  in  a  branch  at  another,  in  a  po- 
cosiii  at  another,  for  a  pine  standing;  in  a  marsh  near  a  hill, 
thence  to  a  pine  in  an  Indian  old  field  ne;ir  the  river 
Neii'-e,  ilience  a  course  and  distance  across  the  river  to 
the  Nortli-west  side  of  the  river,  thence  a  course  and 
distance  to  a  particular  corner.  The  line  from  the  pine 
la^'l  menrinned,  run  accordint^  to  tli€  course  and  distance 
in  tlie  patent,  crosses  a  part  of  the  old  field  and  river 
also.  It  also  runs  through  an  adjoining  marsh  in  a  very 
miry  part  of  it,  stopping  where  that  line  intersects  the  ri- 
ver; and  running  the  next  line  according  to  the  course  and 
distance  in  the  patent,  it  crosses  the  river  in  two  places 
(the  river  there  forming  almost  an  island  by  tlie  circuity 
of  its  course)  and  terminates  on  tiie  South-east,  instead 
of  the  Morth  west  side  of  the  ri\er.  If  that  line  is  made 
to  terminate  in  the  peninsulated  piece  of  land,  and  on  the 
-  North-west  side  of  the  river,  and  the  next  line  he  run 
{253)  f,.jj^  liieiicc  according  to  the  course  and  distance  in  the 
patent,  it  would  not  cross  the  river  as  it  lan  at  the  date 
of  the  patent.  The  river  from  one  part  of  this  hent  to 
the  other,  which  that  line  would  not  cross,  tia^ing  been 
formed  since  hy  a  canal  cut  for  the  purp'iso,  and  in  thai 
case  the  Plaintiff  would  he  eiitillrd  to  lecovcr  |)art  of  the 
land  described  in  the  declaration  ;  but  if  the  second  line 
from  the  pine  is  made  to  terminate  on  the  North-west 
side  of  the  river,  immediately  after  crossing  it,  not  re- 
garding the  distance  in  the  patent,  then  the  next  line 
run  according  to  the  course  and  distance  in  the  patent 
from  thence,  crosses  the  ri\er  in  two  places,  and  in  that 
case  th  Plalntift" is  not  entitled  to  lecovej- :  or  if  that 
line  is  ccmtiiiued  until  the  distance  called  tor  in  the  patent 
is  com|)leted,  the  next  line  from  thence  crosses  the  i-iver 
in  two  places,  and  in  that  case  the  PlaiutilTiseiUilled  to 
re(over.  The  latter  is  the  line  conteiuled  for  by  the 
Plaintiff,  the  former  that  contended  for  by  ihe  Defend 


Haywood's  heports.  292 

ants.  If  tlie  land  linw.'vcr  should  b^  run  out  accnrdine;  *'*'"• -''^'^• 
to  the  courses  anri  distancos  in  Hip  p;it(  nt  fiom  the  be- 
giiinitig,  then  tlie  lines  do  not  extend  to  the.  sw.mip,  po- 
cosin  and  marsli.  severally  called  for  in  th'' patent,  and  the 
land  is  very  far  wiihin  the  lines  that  do  extend  to  them — 
so  far  within  them  that  the  Plaintiff  i'*  -lot  entitled  to  re- 
cover any  (hintc.  Tlnse  courses  and  di-tanre  linis  were 
distingushed  Irom  the  mhers  which  were  extended  ti.  the 
several  natural  boiindaiies  mentioned  in  the  patent,  by 
beinp;  called  the  dotted  lines. 

Per  curiam,  after  argument,  as  to  tiie   dotted  lines — 
The  dispute  witli  respect  to  them,   may  be  derided  by 
laying  down    the    rule    with    regard    to   boundaries :  it 
is  this,  wlierevei' the  beginning  is   ascertainetl,   and   the 
lines  from  thence,  are  by  the  words  of  the  patent  to  ter- 
minate   at  a  natural    boundary,  as    a  swamj),    hrancii, 
creek,  river,  mountain,  hill,   or  the  like,    if  eiiiicr  the 
course  or  distance  mentioned  in  the  fiatent   will    not  ex- 
tend the  line  to  tlie  natural  boundary,  the  course  or  dis- 
tance, or  both,  must  be  disregarded,   and  t!ie   line    not- 
withstanding these,   must  be  extended    to   that  nutural 
boundary  if  tlic  course  will  lead  to  it  ;  hut  if  the  distance 
falls  sliort,  the  line  must  be  extended  beyond  llie  distance, 
till  it  arrives  at  tlie  natural  boundary.     And  in  the  pre- 
sent case,  if  the  dotted  line  will  not  extend   to  or    inter- 
sect the  natural  b-undaiies  called  foi'  in  the  patent  ;  and 
if  on  tlie  contrary,  the  other  lines  will   extend   to   tiiem, 
the  result  in  point  of  law  is,  that  these   latter  are  to  be 
dei'uied  the  lines  descrihrd  in  the  patent ;  and  tlicn  there 
can  be  little  doubt  with  regard  to  any  of  Iheni,  until  we   (254) 
arrive  at  the  pine  in  the  marsh.     As  to  the  line  leading 
from  tiience,  it  is  remarkable  that  the   counsel   on  both 
sifles  have  adinitte<i  that  there  was  no  actual   survey  of 
the  land  before  the  patent  issued  ;  hiuce  follows  an  un- 
reasonableness in  supposing,  that  the  line  from  thenco 
was  run  through  tlie  marsh.     It  was  of  no  value  in  those 
times,  and  the  surveyor  and  chain-carriers  would  iiardly 
have  lun  through  so  miry  a  part  of  it,  for  the  purpose  of 
taking  in  so  small  a  portion   of  it.     If  we   suppose  the 
cour-^e  mistaken,  which  might  easily  be,  and  that  the  line 
run  in  fact  along  the  edge  of  the  marsh,  and  in  that  di- 
rection terminated  on  the  river,  it  will  still  terminate  in 
the  old  field,  wiiicli  may  be  considered  as  a  natural  bouTi- 
iary;  and  in  this  direction   the  distance  will  bo  com-. 


293  uaywood's  reports. 

M«i.l79«.  pjefed  without  rrossinc;  the  ri\er,  wliich  the  patent  doth 
s^'v^^i.'  not  call  for,  as  it  lias  done  in  other  instances  wlnri-  the 
line  «Ioes  cross  the  river.  That  direction  >ind  termina- 
tion is  attended  with  this  further  advantage,  thiit  tlie 
next  line  drawn  from  thenrr  according  to  the  course  and 
dix'-.uicc  in  Ihr  palent,  crossing  the  old  field  longitudi- 
nally, crosses  the  river  hut  once,  as  mentioned  in  the  pa- 
ten', and  completes  the  distance  in  the  peninsula  without 
crossing  the  river  a  second  time  ;  and  then  the  termina- 
tion of  thnt  line  i-<  on  the  Novth-west  side  of  the  river,  as 
called  for  in  ihe  patent,  and  »iot  on  the  JJorih-east.  It 
wtMild  be  attended  with  this  f.rther  advantage,  th- 1  the 
next  line  drawn  from  the  termination  last  mentioned,  ac- 
corrling  to  the  course  and  (llstance  in  the  patent,  i-snes 
from  the  peninsula,  through  the  narrow  neck  of  land  that 
connects  the  peninsula  with  tiie  adjoining  land,  where  at 
the  date  of  the  patent  there  was  not  any  canal,  and   »ill 

noi  cross  the  river  as  it  ran  at  the  date  of  the  patent 

Whereas  iCitbediawn  from  either  of  tin-  other  twopoinls, 
it  will  cross  the  river  at  two  places,  although  that  cir- 
cumstance is  not  mentioned  tn  the  |)atent.  The  circum- 
stances upon  U'hirh  this  supposition  is  founded,  are  ail 
of  them  circumstances  arising  from  the  natural  bounda- 
ries that  are  in  this  case,  namely,  the  marsh,  ihe  old 
field,  the  river  crossed  but  once,  the  line  terminating  on 
the  Noith-v\esl  side,  and  the  river  not  riosscd  at  all  by 
the  last  line  ;  and  as  they  are  f'liiiiished  by  a  considera- 
tion of  the  natuial  boundaries,  tiny  are  competent  to 
justify  the  jury  in  disregai'diiig  the  course  called  for  in 
the  patent,  of  the  line  from  the  pine  ;  especially  as  the 
patent  mentions  natural  boundaries  in  every  other  in- 
stance  where  the  lines  did  intersect  them,  and  as  in  the 
^^255;  description  of  the  last  line,  it  has  not  mentioned  crossing 
the  ri^er  at  all  ;  whereas  it  must  cro-s  it  in  two  places, 
if  \^  hat  either  the  Plaintiff  or  Defendant  contends  f"r,  be 
tmc.  According  to  ihe  b'fore  mentioned  supposition,  it 
will  cro.>8  at  the  canal.  v\h»re  at  the  lime  of  this  patent 
theie  was  none  ;  and  so  it  will  be  accounted  for,  why 
th<  patent  in  describing  this  line,  has  not  mentioned  the 
river,  as  it  did  with  respect  to  the  line  next  preceding; 
and  in  every  other  case  where  a  natural  boundary  was 
touched.  II' this  supposition  be  adopted,  the  Flainliffis 
entitled  to  lecover  a  part  of  what  he  contctids  for  0))ly. 
The  Jury  found  the  Defendant  not  guilty. 


HAYWOOU'S    REPORTS.  294 

XoTK. — This  verdict  must  have  bem  fouiidrd  upon  a  5u<)positi<'n,  Mjt.  1796. 
thai  tlie  lin.   ill  controvt-rs)  was  to  be  dr  i' i)  fi' m  ateitninaii'm  n'' itie  ,^^-v-'^^ 
lim   '.ext  preceding,  beinij  at  a  point  immediately  after  it^  cross'tigfUie 
river,  and  not  at  a  pont  further  on  in  the   peninsula— from    whence 
the  last  Ime  being ilrawn  by  llie  Course  and  distance   in   the  patent, 
woulil  !iave  itossi -d  tbi-  canal. 

Note Vide  Bradford  v.  Rill,  and  the  not?  (hereto,  ante  2~. 

LiiAvthorj)  V.  Sinitli. 

rf  one  of  two  joint  owners  iif  a  vessel,  forcibly  take  possession  of  lii>v, 
and  send  het  to  sea,  without  or  against  the  will  oi  the  other,  and  she 
is  lost,  lie  will  be  liable  in  trover  tor  her. 

Trover,  for  one  h^ill'  of  a  srhooner.  IThis  scliooncr 
formei'ly  bilniiged  scilcly  tii  Smith  ;  he  sold  the  one  lialt' 
to  Lowtlwrp,  who  8ii(ieiinteii(lc(l  ilii-  jtR'airs  of  the  vessel 
for  two  of  tliree  vojatjes  ;  liul  on  !iei-  i"e|iiruin_a;  (i-om  the 
tliiid  voyage,  «liicli  was  to  Lo'idon,  StmVA  foi-cihrv  took 
possession  of  liee.  Tlie  next  Miynge  was  in  Fchruary,  to 
Ch.iileston — this  voyage  Lorvthoi"p  foibad.  Tlie  next 
vojage  was  iniended  (o  Cv.pr  Fiancnis — it  was  neither 
forbidden  or  ronsentcd  (o  by  Lowthorp  ;  Smith  sent  hee 
out  without  ronsultiii.aj  him.  TiiC  vessel  was  lost  on  hcs- 
outvvai-d  biiiiiid  voyage.  Tlie  (ounsei  fof  (he  PlaiotiflTri- 
ted  Butler's  JVisi.Prins  34.  Salk.  290,  On  the  |.aft  of 
the  Defendant  it  was  admitted,  thai  where  one  of  two 
joint  owners  takes  the  whole  to  himself,  and  desteoys  ihe 
thing  owtied,  trover  will  lie;  but  if  the  thing  be  fortibly 
taken  at  first,  and  afterwards  used  as  the  common  pro 
per'y  of  both,  and  for  the  benefit  of  both,  and  whil-i  so 
employed  shall  be  lost,  that  such  loss  is  a  common  one  : 
liere  tbe  vessel  at  first  was  forcibly  taken  by  the  Defen- 
dant, and  the  first  voyage  to  Charleston  forbidden  ;  but 
it  (Ities  not  apjiear  they  afterwards  disagreed  about  the 
ve-isel.  The  last  voyage  was  not  forbid  by  the  Plaintiff, 
and  it  may  be  reasonably  presumed,  as  there  is  no  evi- 
ilence  to  thii  contrary,  that  it  was  by  consent. 

Per  curiam — If  one  of  two  joint  ovvners  takes  jiosscs- 
31(01  of  the  whole,  no  action  will  lie  for  this,  foi-  one  hath 
as  much  right  to  the  possession  as  the  other  ;  but  if  after 
taking  possi'ssion  he  destroys  the  property,  he  is  then  li-  (250) 
able  ;  because  the  joint  ownei-ship  does  not  empower  him 
to  destroy  the  property  <if  the  other  ;  and  if  such  joint 
owner,  after  getting  ilie  sole  possession,  shall  vviihoii'  ihe 
consent,  or  against  Mo-  'y\\\  of  (he  other  owner.,  send  the 


295  haywood's  RF.poRrs. 

Mi>r  1796.  vpsspI  to  sea.  and  slic  he  lo'^t  in  that  voyage,  tliejiiiy  may 
*-'~^'^'*'  coHsi'liT  siiih   loss  as  a  di'stnutioir  of  the  vessti,  orca- 
sioiied  by  ihijdiirt  owner  by  means  of  sending  her  to  sea, 
and  find   lot-  tlio  Plainliff. 

The  jnry  tonnd  arc>'rdin;^1y  for  the  Plaintiff,  l)ein!r  of 

oiiiiiion  tliat  tlie  |.>ss  in  titis  case  was  a  destrurtion  orca- 

sioned  l)y  tlh   Dcfi  ndant,  and  of  fonrse,  a  conveision  in 

hjii' — tlit'y  assessed  damages  to  £1072. 

Tlie  com  t  cited  JHolloy  b,  2.  c.  9.  s.  2.  3. 

Note.— I  u/e  2  Sawid.  479.     J5ii//.  i\.  P.  Si  05.      Cn.  Lilt  200  a. 

Rogei's  T.   Briley. 

Tlie interest  to  <xc)ud(  a  vvitncss  to  a  will,  irmsl  be  either  an  express 
legacy  directly  l'>  him,  a  legacy  with  an  e.\priss  use  for  him,  or  a 
se'.ret  tiust  and  agreement  on  the  \m\{  of  ihe  Ii-catce  fiir  hi.';  n<e  ; 
and  a  declaration  by  witnes.s  th;it  !he  lepi'ce  holits  for  his  use,  will 
not  exclude,  ^lnles^  it  be  proved,  tir.t  the  !c>fatee  had  made  an  en. 
gagernent  to  h<»M  for  his  bv^nefit.  Though  a  f.ir.t  be  posittvely  sworn 
to,  by  onp  nr  two  wilnessep,  and  th<  y  aprer  [irolty  well  in  tlieir  tes- 
timony, yit  '.he  jiirj,  t-ilher  from  th.  i;  cliartcter  or  ihe  eiiCMni3t;in- 
ces  of  the  case,  m^y  disbelieve  them,  and  find  against  their  evidence. 

Briley  liad  ofTered  for  probate  a  p:iper,  pui  portina:  to 
be  th''  will  of  one  Jones,  wlieieliy  the  jyeater  part  of  'lie 
pntperly  w  as  dcv  ised  !o  hint.  This  prnbute  in  the  Coun- 
ty Court  oil'itt,  Wits  opposed  by  Rogers,  who  li^d  mar- 
ried the  only  <l:!UghN'r  of  the  dere..sed  :  and  llie  issue 
made  op,  was,  devisarit  rel  non,  pnrsnant  to  the  act  of 
1789.  C.  23,  s.  1.  One  of  the  sidiscribing  wilnesse.s,  was 
JBriley,  son  of  the  legiUee  ;  lie  was  iiffercd  to  prove  the  will, 
anil  tJiere  was  an  oh  jectinn  (o  the  competency  of  his  tes- 
timony, npoii  the  ground  of  his  lia\ing  >^iiid  in  conversa- 
tion, ihiit  the  piopeiiy  was  devisid  to  his  fatlier,  for  the 
use  of  him,  the  witness,  or  in  ti  ust  for  him  ;  and  the  rea- 
son why  it  WHS  not  devised  direi  tly  to  him,  was,  becau.se 
he  was  involved  in  his  cirt  nmstiinces,  and  his  creditors 
migl  t  have  seised  on  'he  piopeitv  htid  it  licen  bequeathed 
to  him.  A  witness  in  court,  proved  he  had  made  these 
declarations.  . 

Per  curiain^-TUc  objection  to  this  witness  is  as  to  his 
ctmipetency.  The  objeciion  is  grounded  upon  this,  that 
if  he  esiiililishes  the  will,  his  father,  the  legaiee,  may  then 
be  (oniielloti  lo  fulfil  ihelriisl  he  lias  iindei'iaken.  Now 
in  the  case  of  a  will,  the  interest  of  the  witness  can  only 


HAYWOOn's    IlKfOUTS.  296 

al)ppar  by  one  of  these  three  ways — eitliei-  by  haviiij^a  le-  M^i"  '796. 
gacy  cxiii'fssly  and  cljrectly  beiiMcatlied,  wliicli  !•<  not  tlie  ■■■^~'''^^^ 
present  case;  or  by  iiavhm  a  let^acy  betjneatlicd  exprt-ss- 
ly  in  tfust  fill-  liini,  whirh  is  also  not  lliis  case  ;  w  l)y 
baviii!^  a  log-acy  bi-qaeatlied  to  a  iliii-d  pei-son,  witliout 
aiij  use  or  trust  declared,  but  mion  ascciet  triisr  and  en- 
ga_e;einent  on  the  p.ut  of  the  legatee  to  hold  loi  hini — that 
is  not  the  |irp-;eiit  case,  lor  there  is  no  |iroi)f  that  Briley, 
tlie  fatlier  and  legatee,  batli  ever  made  any  such  i-nga.^e- 
ment  ;  and  though  such  a  (lei  laration  madi'  by  tlie  wit-  (257> 
•less,  (nay  tetid  lo  ditninish  his  cifdibiiity,  it  is  not  suffi- 
cient to  remove  his  com|ieleiicy.  'I'lie  witness  was  sworn, 
licpro\c(l  the  t'X'M-ntion  of  the  will,  ati  did  also  the  other 
subscribing  witness — they  svvore  to  lin-  sanity  of  the  de- 
ceased at  the  time  of  tlie  exi'culion.  Their  testimony 
agreed  in  the  circumstances  attending  the  execution,  such 
as  the  place,  persons  piesi-iit,  time  of  the  day  ;  and  that 
Ills  name,  as  well  as  ihat  of  one  of  the  witnesses,  was  writ- 
ten by  this  other  witness,  lirilcy.  Their  evidiiice  WaS 
corroborated  by  that  of  Mr.  Collins,  on  Attorney,  who 
swore  Itriley  came  to  him,  re(j!iesiing  him  to  go  to  the 
house  of  Ibe  deceased,  and  wciie  his  will  for  him.  and  be 
a  witness  of  its  execution.  On  the  other  side,  it  w>jS  pro- 
ven, that  the  day  after  the  will  bore  date,  the  witness 
Urikij  shewed  it  to  a  near  neighbor  of  the  .deceased,  an(i 
told  him  he  wisln-d  to  prove  it  at  the  next  court,  and  that 
the  t('stator  at  this  time  was  in  good  health  ;  that  the  tes- 
tator had  an  only  dadghtir.  and  said  only  a  few  days  be- 
fore the  date  of  the  will,  that  he  should  make  no  will  as 
he  had  but  one  child — that  lie  was  ujion  good  terms  with 
his  daugliTer,  though  he  hail  foi'mei  ly  been  othi-rw  ise  with 
lier  first  husband — that  Briley  the  witness,  on  the  17th  of 
December,  eiglit  days  before  the  will  bore  date,  applied 
in  company  w  ith  another  man,  of  the  name  of  JVyatt,  to 
a  Dr.  Jones,  for  ratsbane,  and  got  some  trim  him — that 
some  time  after,  the  Doctor  saw  him,  and  asked  him  if 
he  was  not  the  man  that  had  been  at  his  shop,  when  he 
denied  that  he  had — that  a  Coroner'n  impiest  was  held 
over  the  body,  and  that  it,  was  the  opinion  of  the  jury,  and 
th'  physician  who  was  then  examined  by  theiii,  that  the 
drceasi'd  died  by  poison — iiis  death  hiiiprned  eight  or  ten 
days  alter  the  date  of  the  will,  and  BrUcy  and  the  olhcr 
witness,  both  said  he  was  well  at  tlie  time  of  tin-  exeru- 
tioii — the  testator,  a  fen  days  befoie  the  daleof  ilie  will. 


297  ,       Haywood's  reports. 

Ma.-.ir96.  expressed  his  ill  opinion  Uotli  of  tin-  witness  Brdey,  anu 
'••'"^''"^^  ol     IS  r.itli(;i,  (lie  IcgHtee,  in  strong  terms. 

Per  curiam — l  iioujili  a  fact  may  be  positivi-ly  sworn 
to  bj  '>ne  or  t\M;  witnesses,  and  liioiij^li  tlie-ie  witnesseK 
may  concur  in  iw;i  •>■  of  tlie  eircuiiistances,  the  jury  are  not 
absolutely  bound  lo  believe  the  fact  tlicy  swear  to,  if  they 
have  i-easoii,  either  fiom  liie  character  of  the  witness,  or 
the  circuiiislanres  with  regard  to  that  case,  to  disbelieve 
them.  On  the  contrary,  a  gi-ai  number  of  circum- 
stances comiiia;  fi  Dm  witnesses  of  good  credit,  and  con- 
curring in  the  establisjiinent  of  anj  pusition.  might  cs- 
'^  ^  tablish  it.  Tiie  court  then  recited  the  circumstances  be- 
fore stated  Oil  bntli  sides,  and  lel'i  it  to  the  jury  upon  the 
consideration  of  them,  to  say  whellier  or  not  this  will 
had  been  duly  executed.  The  jury  found  it  was  not  the 
will  of  the  deceased. 

Hartsfield  v.  Westbrook, 

One  lin.e  of  ;i  boiir.dary  was  fiom  ;.  poplar  on  a  swamp,  "  llicnce  down 
the  swamp  to  the  be[;in"inp":  held,  that  th.  s.iamp,  and  not  a 
straight  line  from  the  poplar  to  the  beginning,  is  the  boundary. 

The  patent  called  for  a  beginning  at  a  tree,  which 
stood  (though  not  so  espresseil  in  the  patent)  near  the 
swrinip,  iheiice  in  a  recta. igular  course  femii  the  swamp, 
thence  Si.uih  degrees  U  est,  thente  North  to  a  pine 

(wliuh  also  swiod  near  the  swamp,  but  not  said  to  be  so 
in  ;he  piitent)  thence  to  the  beginning,  not  taking  any 
notne  or  making  any  mention  of  the  swamp.  The 
patentee  conveyed  part  of  this  land  to  Eaves,  who  con- 
veyed lo  Hiirlsfield.  Eaves' s  deed  began  at  the  begin- 
niiig  corner  ol  tiie  patent,  thence  a  rectangular  course 
from  the  swamp,  thence  South,  tlu-nce  North  to  the 
swiiiiip  to  a  jioplar,  thence  dffxvn  the  swamp  to  the  begin- 
ning. Tlie  trespass  complained  of,  was  on  the  opp.isite 
sld<- of  the  swamp  from  the  poplar.  It  was  wiihin  the 
la^xl  of  ilie  Plaintiff,  if  a  direct  line  from  one  boundary 
to  tlie  other  was  fin  Miie  one ;  but  not  within  it  if  tin- 
swi'mji  was  the  true  boundary. 

I'tr  curiam — The  swamp  is  to  be  ( oiisiilerod  as  tbe 
bounifaiy — but  th.it  ti;is  jiid;j;ineiit  may  not  be  hiirrieil. 
ymi  •■  ay  o)  'Vt'  tlie  Hi.tUer  ii  an>>tliei  da}.  Sh  nlu  ihe 
opinion  ol  the   court  be  altered  iti  the  mean  time,  they 


HAYWOOn's   REPORTS.  298 

will  then  set  aside  the  nonsuit  now  ordered.  The  Plain'  M»r.i796. 
tiff  was  nonsuited — mid  a  few  days  afiei-waids  it  was  ^■^"^'"'•^ 
moved  by  Gen.  Davie,  that  this  nonsuit  siiould  bo  set 
aside,  sayin);  he  wished  the  ()|iinioii  of  the  court  upon 
this  point,  hecause  another  suit  whs  drpendins;  iu  court 
upon  tlie  same  point,  hetweeii  Hartificld  and  Fuller, 
wiiicli  would  he  disposed  of  immediately  should  the  court 
be  of  opinion  that  the  swamp  was  to  be  considered  as  the 
boundary. 

Per  curiam — A  case  similar  to  the  present  was  decided 
at  Exlenton  last  term,  between  Foster  and  Sandifer — the 
expression  there  was,  "tiience  alont;  liie  river;"  here  it 
is,  •'  thence  down  the  swamp  to  the  hi\e;inning" — they  are 
both  of  tiie  same  import,  and  the  case  of  Foster  and  San- 
difer, is  therefore  tit  to  govern  the  present,  and  according- 
ly tlie  swamp  in  thi-  present  case,  is  to  be  considered  as 
the  boundary. — Let  the  nonsuit  remain,  and  the  rule  to 
show  cause  why  if  should  not  he  set  aside,  discliar.2;ed. — 
Then  Oen.Davic  dismissed  tiic  otlier  suit  of  Hartsfield  v. 
Fuller. 
NoTK. — Vide  Sandifer  v.  Foster,  ante  23". 


Blackledgc  v.  Simpson. 

When  to  a  bill  filed,  staling  errors  in  an  account  seltled  four  or  five 
years  agu,  Defendant  pleiided  specially,  denying  each  error  kihI  al- 
so all  fraud,  if  the  Plaintiffdoes  not  take  issue,  and  prove  the  en-or 
or  fraud,  the  court  will  not  disturb  the  account. 

This  was  a  hill  slating  errors  in  an  account  settled  be- 
tween the  Plaintiff  and  Defendant  some  four  or  five  years 
ago,  particularizing  the  errors,  and  praying  to  have  them 
rectified.  Tlie  Defendant  jilead^d  spicially  and  particu- 
larly to  each  error  assigned,  that  there  was  no  such  er- 
ror as  was  assigned,  and  denied  the  fraud  and  imposition 
charged  in  the  liill,  lioiU  in  his  plea  and  answer. 

The  plea  was  now  argued,  and  after  argument :  Fev 
curiam — Where  a  bill  is  for  an  account  generally,  then 
the  |»lea  of  a  stated  account  is  a  good  plea  in  bar  ;  for  the 
account  having  been  settled  by  the  parties,  ihe  presump- 
tion is  that  it  hath  b.cii  fairly  settled,  and  the  court  will 
not  open  it  again  merely  because  asked  for  by  tiie  party : 
but  where  the  bill  states  a  settled  account  and  errors  in  the 
Aicount.  and  fraud  or  imposition  in  the  settlement,  then 
•f  the  Defendant  does  not  deny  the  error  anH  fraud,   ihn 


(259) 


299  UAYWOOd's  REP0BT8. 

M.r  1796  Plaintiff's  allegations  remain  uiianswfred,  and  the  court 
'^"^'^^i'  will  '  pi'ii  tlie  account  as  to  the  errors  pointed  out  ;  but 
if  the  plia  denirs  the  error  and  fovud,  and  tiie  f> and  be 
denied  in  the  HiiMwer  also,  so  that  issue  may  be  taken  up- 
on the  error  and  frMud,  the  plea  uf  a  stated  acccount  is  a 
good  bar  in  law.  And  IT  the  Plaintiff  doth  not  take  issue, 
and  prove  tiie  error  and  fraud,  the  court  will  not  open  the 
account  in  any  manner;  but  if  issue  be  taken  upitn  these 
P"ints,  and  lound  for  thi'  Plaintiff,  then  the  court  will  or- 
der the  account  to  he  opmed  as  to  the  errors  complained 
of  and  proNcd — but  tli<  plea  and  answer  must  deny  the 
erior  a>.  positively  as  they  are  alleged,  so  that  issue  may 
be  taken  on  these  verv  points — for  want  of  that  particu- 
lar, the  plea  would  be  ill — but  hen',  it  is  full,  atd  issue 
may  lie  taken  precisely  and  specially  upon  the  errors  and 
fraud,  and  tlieref'i'e  the  jilea  is  good  and  must  be  allow- 
ed;  but  the  Plaintiff  must  still  reply  and  take  issue. 

Den,  on  the  demise  of  Sasser  per  Guardian  v.  BIyth. 

A,  seised  in  fee  of  the  pr'^nises  in  qucition,  executed  a  deed  to  his 
SOI.,  in  wtiich  he  stated  tliat  for  iht  pr«fermenf  of  his  son,  l)e  con. 
,  veyedthe  l;,ndtoh<n)  and  to  liis  heirs  forever:  Provided 'h»l  this  deed 
shall  uot  take  effect  diiniig  tlie  lives  "(  ihe  grantor  and  his  wile; 
but  Ihe  prLtnises  slionld  rcoiaii,  firM  lO  bin:  f(ir  hs  natural  lit.  and 
then  to  her  for  her  life:  held,  that  the  hist  clause  of  the  deed  w»s  a 
good  reservation  of  tlie  life  estates  and  that  the  fee  is  a  good  re- 
mainder upon  them. 

Ejf-ctment.  And  special  verdict,  stating  in  substance, 
that  John  Sasser,  sen,  being  seised  in  fee  of  ihe  premises 
in  qoesiion.  in  Apiil.  1774,  executed  a  deed  to  liii*  Son  ; 
in  which  it  is  staled  th.it  for  the  better  jirefeiment  of  his 
Son,  &c.  he  conveyed  t..  him  several  tracts  of  land  de- 
scribed in  the  deeil.  And  amongst  others,  the  premises 
in  question,  to  him  and  his  heirs  forever.  In  which  deed 
is  coiitai^'eil  a  clause  to  the  effect  following,  to-wit:  Pro- 
vided that  this  deed  shall  not  take  effect  during  the  liies 
of  ihe  grantor  iiiid  his  wife,  hut  the  premises  therein 
(260)  ineniioiied  should  remain,  first  to  him  for  his  naturtti 
life,  the'i  to  his  w  ife  for  her  natural  life.  Johiu,  the  graniec, 
difd  seised  in  fci .  iniestate,  leaving  a  brother  who  died 
intestate,  leaving  Jflmas,  his  only  son,  an  infant.  John, 
the  elder,  alsr.  on  the  fifth  "f  June,  J778,  execut  d  a  deed 
for  the  pi't  inises  in  (|iiesiiiiii.  in  consideration  of  na'nial 
affection,  to  iiiv  daugUici-  Mary  JHyt/i,  and  her  heirs,  alter 


HAYWOOD^S  REPonxs.  300 

his  decease,  on  condition  Uiat  slie  and  herhusband  shnnid  Mar  1796, 
liv«  witli  him,  anil  tulip  rare  of  him,  and  also  by  anoihi'f  *>^''">'''*-' 
deed,  dated  the  24th  Janiiaiy,  1782.  he  Kianted  the  (iie- 
mises  to  his  said  daii.e;liter  in  fee,  absolutely  nnil  witliout 
any  j)r<iviso.     JoAn,  tin' elder,  died  seised  in  1782.     John      , 
Sasser,jun.  liv.  d  with  John,  the  elder,  till  his  death,   in 
1776.     JIary  Blyth,  and  her  husband,  liied    with  him  in 
like  manner,  and  continued  in  jiossession  after  the  old 
man's  deaih. 

Bilker  for  the  Plaintiff — The  deed  to  Sasser,  the  son, 
may  operate  as  a  feoffment,  or  deed  of  e;''^  "'"  convey- 
ance uniler  the  act  of  1715,  c.  38,  s.  6,  whicli  afiei'  di- 
rcctin_a;  the  registration  (if  deeds,  says,  and  all  deeds  so 
done,  and  executed,  shall  be  valid,  and  pass  estates  in 
lands,  or  right  to  other  estate,  witliont  livery  i>f  seisin, 
attornment  or  other  cei'emony  in  the  law  wiialsoever.— r 
Under  this  art,  all  deeds  in  whatsoever  form  they  may 
be  drawn,  where  they  evince  an  intent  to  convey,  shall 
have  the  effect,  if  re,i;istered,  tliat  the  parties  intended 
them  to  have.  If  intended  to  operate  as  a  fcnffinent,  they 
shall  operate  as  sucli,  without  the  ceremony  of  liveiy    of  i 

seisin.  If  drawn  in  the  forni  oFa  deeil  <>f  gilt,  so  that  in 
strictness  it  is  neitiier  a  feoffment  ikh-  deed  nndci-  the 
statute  of  uses,  yet  if  thei'C  appcitis  to  be  a  char  intent 
to  pass  the  lands,  and  the  deed  be  regisfere<I,  it  sjiall  be 
effectual.  If  it  can  be  called  neitliei-a  t'eoffnienl  nor  deed 
of  gift,  if  registered,  it  shall  be  sufficient — the  intent  of 
the  parties  being  apparent.  This  act  mean!  to  establish 
all  deeds  wiihotit  regard  to  their  form,  whether  they  were 
deeds  at  the  common  law,  or  nndei'  the  statute  of  uses, 
or  neither  the  one  nor  the  othei-,  where  iheie  was  an  in- 
tent of  tlie  piU'iy  to  convey.  We  may  well  consider  this 
as  a  deed  of  feoffment,  the  act  takes  awriy  the  necessity 
of  livery  and  seisin  ;  and  if  we  consider  it  as  a  deed  of 
feoffment,  then  liie  proviso  is  void,  as  being  repngriant 
to  the  body  of  the  deed,  and  iht  grantee  had  a  present 
state.  New  invented  clauses  against  the  nature  of  the  es- 
tate granted,  have  always  been  held  invaliil,  as  being 
repugnant  to  the  grant.  Co.  Litt.  a82,  6.  in  the  ntites. 
Co.  I,i«.  377,  6.  in  the  notes,  6  Bep  41.  Litt.  S.  350, 
Su(h  as  a  feoffment  with  a  clause  of  non-alienaii>Mi.  2 
Bep.  23.  Or  a  deed  to  a  man  and  his  heirs,  habendum  v.*"V 
from  99  years  to  99  years,  for  300  years.  The  third  re- 
solution in  this  case  was,  that  ;:ti  habevdum  repugnmit 
to  the  premises  is  void,     Cro.  Eh%.  354,  255.    Habeit' 


so*!  IIAYWOOU'S    UEPORTS. 

Mar.  1796.  ^jjjjj  after  the  deatli  of  the  grantor,  and  no  estate  limited 
ill  the  premises,  is  void.  2  Ba.  M.  498.  Grant  of  the 
reveision  dependant  npun  an  estate  for  tliree  lives,  ha- 
bendum to  A.  for  life,  which  estate  to  be.^in  after  (he  three 
lives  were  expired,  is  a  good  grant  of  the  reversion,  and 
vest  a  pi'esent  reversionary  interest,  the  habendum  bi-in^ 
void.  6  Rep.  41,  Jlildmay's  case.  No  condition  shall 
make  an  estate  to  cease  as  to  one  and  re>  ive  as  to  the 
other.  Hen*  was  a  condition,  that  he  Hhoiild  not  siiHer  a 
common  rerover-y,  and  if  he  attempted  it,  that  then  the 
estate  to  one  should  ceas-e,  and  revive  and  commence 
in  another.  All  these  cases  jirovc  that  a  subsequent  part 
of  a  deed,  derogatory  to  a  former  part,  and  tending  to 
lessen  the  powers  over  the  estste  granted  in  the  prece- 
ding pari,  are  void.  This  proviso  is  of  that  nature — it 
lessens  tiie  estate  granted  in  the  premises,  which  was  an 
estate  to  commence  in  presciiti,hy  making  itto  commence 
not  till  after  two  lives  in  being.  It  is  a  proviso  totally 
incompatible  with  the  premises  and  derogat<irv  to  them, 
as  it  attempts  to  take  from  tiie  grantee,  part  of  the  es- 
tate alreiidy  granted  in  It'e  in  the  jiremises  :  op  viewing 
it  in  the  most  favourable  point  we  can.  it  is  in  the  nature 
of  an  habendum,  tiiat  attempts  to  make  an  estate  of  free- 
hold to  commence  injniuro,  after  an  estate  in  fee  already 
granted  in  tiie  premises.  Such  a  proviso  is  void  in 
law  ;  of  consequence  a  present  estate  in  lee  passed  to  the 
ancestor  of  the  lessor  of  tlie  I'laintift',  which  hath  come 
by  regular  descent  to  him,  and  he  is  therefiire  entitled 
the  Judgment  of  tiie  court  in  his  favour  upon  this  special 
verdict. 

But  let  it  be  granted  that  the  proviso  is  valid,  or  at 
least  equally  valid  with  the  other  parts  of  tiie  deed,  and 
to  be  considered  in  making  a  constrnction  upon  it.  It 
will  then  appear  to  have  been  the  intent  of  the  parties  to 
defer  the  possession  till  after  the  death  of  the  grantee — 
will  it  follow,  that  this  is  necessarily  a  freehold  to  com- 
mence inftUuro  ?  1  say  it  will  not :  it  may  be  a  remain- 
der expectant  upon  an  estate  for  the  life  of  the  grantor, 
to  take  effect  in  possession  after  the  determination  of  this 
particular  estate — such  a  construction  is  made  by  ari-ang- 
ing  the  clauses  in  tlie  deed  in  the  same  order  as  they  are 
arr  nged  by  the  sense  and  meaning  of  the  deed,  and  by 
(^262)  ^|„.  i||i|.„t  of  the  parties;  by  transposing  the  clauses,  and 
making  the  latter  part  to  |M'ecede  the  first,  in  which  or- 
der if  they  had  been  at  first  placed,  there  w  ould  have  been 


HAYWOOD  S    REPORTS. 

HOW  no  objrclion  to  ttiis  latter  pait  for  repugnancy.  If 
such  tratispn-^irion  will  hriiig  us  to  the  tiue  and  evident 
meaning  of  the  parties,  what  rnie  of  law  hinders  the  ma- 
king it?  What  prini'iple  of  I'easnn  forhids  it? — 
Th'TP  is  none.  In  triilh,  sncli  construction  is  war- 
ranted hy  law;  frjr  s\  hen  land  is  conveyed  tinder  the 
statute  of  uses  to  A.  after  the  life  of  the  grantor,  the  law 
deems  so  much  of  the  use  as  is  not  conveyed  away,  t.i  re- 
main in  the  grantor  ;  and  that  being  an  use  coinmcnsurate 
wiih  his  life,  there  still  remains  in  him  a  freehold  use, 
which  will  continue,  until  the  estate  granted  commences 
in  fiossession,  and  so  not  a  frceliold  to  commence  infti- 
luro;  but  a  fee  dependant  upun  a  freehold,  is  conveyed. 
Covenants  to  stand  seised,  are  sniiportod  ".ipini  this  jirin- 
ciple — if  a  man  covenants  to  stand  seised  lo  the  use  of 
another  in  fee,  to  commence  afier  his  death,  it  is  good  to 
pass  the  reversion  to  the  graniec.  Tiie  law  implies  an 
use  for  life  in  the  grantor,  snilicient  to  support  tiie  estate 
infuturo  whin  it  (onn-lh  in  esse.  T.'ie  principle  univer- 
sally applied  in  all  sni'li  cases  is.  that  the  law  will  con- 
strue the  deed  to  be  such  an  one,  !iy  hcing  which,  il  will 
i)e  ill  law  compi-teni  to  ]>;iss  tln^  estate  as  ilie  parties  in- 
tended, nt  rds  mugis  valml  qiuun  pereat.  it  is  the  busi- 
ness of  Judges  so  to  construe  deeds,  as  that  they  shall 
operate  in  such  manner  as  will  eflVctuate  the  intent  <tf 
parties.  5  Bac  Jib.  365.  A  covenant  to  stand  seised  to 
the  use  of  one's  ^e\i.  remainder  o\cr,  is  gcmd  in  the  res- 
pect of  the  remainder;  as  to  wliat  a  remainder  or  lo  stand 
seised  is,  the  consideration  of  blood  is  a  sufficient  C(Hi.si- 
deration  for  it.  5  Due.  Jib.  566.  A  covenant  lo  stand 
seised,  operates  withinit  any  transmiilation  of  |)ossession. 
This  is  the  substantial  and  sole  definition  of  that  convey- 
ance, and  agrees  perl'eclly  with  the  deed  now  before  the 
court,  and  first  mentioned  in  tiic  special  verdict;  wliicli 
if  not  good  as  a  feoffment,  grant  of  the  reversion,  deeil 
of  gifi,  or  Conveyance  under  the  act  of  ITlo,  for  want  of 
some  essential  circumstance  peculiar  lo  each  of  these  spe- 
cies of  conveyances,  tlien  it  ma>  be  construed  a  covenant 
to  stand  seised,  vt  res  mugis  valeaU  as  it  agrees  substan- 
tially with  the  definition  of  ihat  instrument — whereby  the 
estate  will  pass  at:c<nding  lo  liie  i.;!ent  of  parties.  Any 
words  used  in  a  gre.ni,  however  unlike  those  that  are 
most  proper  for  such  a  conveyance,  may  cause  tlie  coi»- 
vevance  to  be  taken  as  a  covenant  to  stand  seised,  if  they 
purport  the  same  in  substance  as  is  expressed  by  the  most 


302 


30a  HAY  wood's  reports. 

Mar.  1796.  proper  words.  2  WiU.  22.  75.  Shep.  Touch.  Free  82, 
^-^"^^^^  83.  3  J/o(l.  237.  1  Mod.  175.  If  the  tleed  now  under 
(263)  coiisidfiation,  can  lie  le.!;nlly  construed  to  be  a  covi-nant 
to  stand  seised,  as  tlirse  authorities  prove  it  may.  tlicn 
this  deed  is  no  more  than  a  covenant  to  stand  seised  to 
the  use  of  the  grantee  after  the  life  of  tlie  grantor  and  his 
wife;  and  is  the  same  in  suhstancc,  as  if  lie  had  covenan- 
ted to  stand  seised,  in  the  first  place  to  the  use  of  himself 
and  his  wife,  dniiti!^  their  li\es,  and  tlie  life  of  the  survi- 
vor, with  remaindci-  in  fee  to  the  son  ;  and  is  no  more  in 
fact  than  the  usual  and  common  conveyance  of  a  present 
interest,  to  i  ommence  in  jiosession  ireyw/uro,  ex|)ectants 
upon  a  freehold  in  bein.aj,  and  is  not  opposed  to  any  rule 
of  law  respectina:  real  estates.  But  notwithstanding 
these  arguments,  let  us  suppose,  ax  will  be  contended  for 
on  the  other  side,  that  this  is  a  void  deed,  because  it  at- 
tempts to  pass  a  freehold  infufuro.  Tlie  consequence 
will  be,  that  by  the  same  rule  iheii-  deed  is  void  also,  for 
the  estate  thcrehy  granted  to  (he  daughter,  is,  from  and 
after  tlie  decease  of  the  granior  ;  and  if  both  deeds  are 
void,  then  the  lessor  of  the  lMniiiiiff  is  entitled  to  recover 
as  being  heir  at  law  to  the  grantor. 

Taylor,  e  contra —Mr.  Baker  lias  begun  with  two  di- 
visions and  hath  cited  casc^  for  the  support  of  e-achr— I 
will  examine  his  authorities  in  Ihr  first  place,  and  Hee 
how  far  they  really  go  towards  the  support  of  his  posi- 
tion. He  says  this  proviso  is  a  new  invented  clause,  re- 
pugnant to  the  premises  of  the  deed,  and  i  hat  by  law  new 
invented  and  repugnant  clauses  are  void  ;  and  he  cites 
Co.  Litt.  282.  b.  A  man  granted  a  rent  with  a  new  in- 
vented clause  of  distress,  Ti» ;  that  the  giantee  should 
hold  the  distress  against  gages  and  pledges,  and  yet  says 
the  book,  by  ihe  whole  court,  he  shall  gage  deliverance. 
This  case  proves  nothing  as  to  the  point  it  was  intended 
for.  A  man  by  his  agreement  cannot  alter  the  rules  of 
law — (lie  rule  of  law  is,  that  a  distress  shall  be  repleua- 
ble  ;  here  they  agreed  that  it  should  not  he  repleviable, 
and  the  question  simply  was,  whether  the  agreement  of 
the  parties  should  prevail  ;  and  because  dispnsitio  legis 
fortior  est  qiiam  hominis.  ihe  court  held  this  new  invenled 
agreement  void  :  otherwise  says  the  book,  by  lliia  new 
invention  all  replevies  shall  be  taken  away.  What  is 
proved  by  (his  authority  is,  that  an  agreement,  condition, 
proviso,  or  new  invented  clause  (no  matter  what  it  be 


ma.ywood'9  reports.  3Cr4 

calleil)  of  the  jiaitirs.  r.put^nHiit  to  a  known  rule  of  law,  Mar.  1796. 
shall  tie  void.  But  1  appreliL'tid,  altliougli  it  may  bi.'  a  ^""'"^''^^ 
new  invention,  if  it  be  noi  irpiit^nant  to  any  fiilc  of  law,  (264) 
it  will  not  be  vi)id  inficly  because  it  is  a  new  invented 
clause.  He  next  cited  Co.  Lilt.  577,  b.  That  also  is  a 
case  of  a  new  invention,  planned,  as  the  book  says,  by 
an  Ii'ishinan,  and  the  invention  is  condemned  ;  be- 
cause by  law  a  tenant  in  tail  has  a  power  as  incident  to 
his  estate,  (o  suffei'  a  recovery,  and  make  a  warranty 
cajjable  of  barrin.a;  it|  and  the  Invention  was  in  direct 
opposition  to  these  powers  annexed  by  law  to  an  estate 
tail  and  the  jierson  of  its  owner;  and  since  either  the 
law  must  have  lieen  altered,  or  this  invention  declared 
void,  (he  Judges  were  determined  by  the  same  reasons 
tiiey  were  governed  by  in  the  foi'mer  case — but  if  it  had 
not  aimed  at  tlie  abolition  f)f  a  rule  of  law,  there  would 
have  been  no  just  reason  for  setting  aside  the  a.tjrceinent 
of  the  parties.  Tliese  cases,  and  many  others  like  thern 
that  may  be  found  in  the  books,  go  upon  the  principle  of 
a  repugnanc*'  to  some  establishe<l  rule  of  law.  The  inixt 
set  of  cases  he  cites,  go  upon  the  |)rinciple  of  repug- 
nance in  the  latter  parts  of  a  deid  to  those  in  the  former 
parts  ;  and  it  must  be  admitted,  that  in  some  cases  such 
a  repugnance  will  make  void  the  latter  clause,  but  in 
what  cases  is  best  exi)lained  by  the  aiith'>rity  cited  on 
the  other  side,  and  which  is  next  in  order  to  be  com- 
mented oti.  2  He.  23,  .idmits  an  habendum  may  he  void 
for  rej)ugnance  ;  and  says,  win  re  ihe  estate  in  the  pre- 
mises, and  that  in  Ihe  habendnnu  both  pass  by  the  d.  li- 
very of  the  deed,  there  it  ilie  estate  in  ilie  habendum,  be 
less  than  the  estate  in  the  premises,  the  habendum  is  re- 
pugnant and  void  :  or  wheie  the  estate  in  the  pieiniscs, 
requires  a  ceremony  to  its  jierfection.  and  that  in  the/ta- 
hendum  none — tlieie  the  estate  in  the  habendum  takes  ef- 
fect by  llie  delivery  of  the  deed  only,  and  is  nor  void  for 
re|Migiiai)cy.  The  provisional  clause  in  this  deed  is  not 
an  habendum,  and  tlie  bare  saying  this,  is  sufficient  to 
shew  the  inapplicability  of  the  case  cited  to  that  now 
under  Consideration.  But  say  it  is  an  habendum,  it  gives 
no  less  an  estate  than  that  contained  in  the  premises — 
they  are  both  estates  in  fee.  The  only  difference  is,  that 
the  one  is  to  commeiue  in  futuro,  Ihe  oilier  presr..ily; 
the  proiiso  atiil  tlir  prereiiinj.'-  parts  of  the  deed  are  lii-tli 
parts  of  the  same  deed,  and  iioth  to  be  taken  into  con- 


305  Haywood's  reports. 

M»r.  1796.  sidepatioi),  in  order  to  ascertain  the  true  meatiiiii?  of  the 
''•^"''^^^^  parties.  The  for'iiier  is  not  to  cause  a  rcjcrtion  of  the 
latter  part  for  repugnancy,  unless  they  be  totally  irre- 
coricileablc  in  im-aninj:;  with  each  other.  What  that 
(265)  meaning  was  in  the  present  case,  is  evident — it  was  to 
ci'cate  a  fee  and  IVt-chold  in  the  grantee,  to  coininence  in 
fuluro,  upon  the  death  of  Ihe  grantor  and  his  wife.  Tliis 
being  once  established,  the  only  question  remaining  is, 
whether  this  intent  he  c(in)|»atible  with  the  rules  of  law. 
In  other  words,  whetlier  a  freehold  can  bo  ci-eated  to 
commence  injuturo  ;  and  that  it  cannot,  )io  one  willdcny. 
As  to  the  other  authorities  cited,  they  all  proceed  upon 
tlie  same  princi|)le  with  these  already  adverted  to,  except 
in  one  instance,  where  the  habendum  was  deemed  void, 
because  it  attempted  to  create  a  freehold  to  commence  in 
futuro.  Tiie  next  attempt  is  to  support  this  deed  as  h 
covenant  to  stand  seised.  If  it  be  a  con>eyance  under 
the  statute  of  uses,  such  a  proviso  is  not  re|>ugnant,  but 
must  be  taken  as  a  part  of  the  deed,  and  must  ha\e  a 
proper  agency  in  forming  a  construction  ujion  the  deed. 
Co.  LitL  9.57.  1  Rep.  irS.  9  Rep.  104.  All  these  au- 
tlioriiies  prove  that  a  proviso  contained  in  a  deed  under 
the  statute  of  uses,  is  good  ;  and  if  the  proviso  in  the 
deed  nt  John  Sassei;  the  elder,  be  not  void,  then  John 
Sasser,  the  younger,  hail  no  estate  in  possession,  nor  had 
he  any  remaindei',  there  being  no  preceding  particular 
estate  to  support  it ;  oi-  if  he  had  any  other  estate,  it 
could  be  no  other  than  a  freehold  estate  to  commence  iii 
fnturo,  and  that  is  void.  5  Rep.  94.  It  cannot  be  main- 
taiticd  that  this  proviso  is  a  nullity;  for.  wherever  a 
proviso  contained  in  a  deed,  is  of  such  a  nature  that  a 
Court  «if  Equity  would  enforce  it,  it  is  good.  In  the 
case  before  us,  had  John  Sasser,  the  younger,  attempted 
to  turn  tiic  old  man  out  ot  possession,  tlie  Court  of  Equity 
would  have  prcvintcd  him  frinn  doing  so  iniquitous  a 
thing.  They  Wfuild  have  compelled  him  to  abide  by  the 
terms  u|)on  wliich  lie  had  accepted  thetleed.  Again,  it  is  a 
rule  that  every  deed  takes  effect  from  the  time  of  its  deli- 
veiy,  or  not  at  all.  it  cannot  for  some  time  alter  deli- 
very be  dormant,  and  afterwards  upon  the  arrival  of  « 
particular  period.  rtvi\e — in  the  pieseiitcasc  the  parties 
have  attempted  to  make  the  <leed  remain  inert  and  dead 
during  the  life  of  ihe  grantiir  anil  his  wife.  The  proviso 
is,  that  the  deed  shall  not  have  the   effect   until,  *cc.  yet 


aAYWOOD's   REPORTS  806 

by  the  rule  of  law  it  must  have  tflTcct  from  the  fiirift  ot^'  "96. 
its  deli \ 01  y.  or  not  at  alt.  If  it  liail  elfect  in  Mi"  pi^seiit  ^-^~^''^*^ 
cast'  fii>nfi  thi-  time  of  delivery,  tlie  estate  i)fJo/i?t,  the 
younger,  whatever  it  wa--.  passed  to  him  fimn  that  time  ;  ^ 
and  that  must  ifi  essarily  have  heen  an  estate  of  freoiiold 
to  commence  infutunt  :  or  if  the  deed  had  no  effect  at 
that  time,  the  estate  did  not  then  pass  ;  and  as  the  d -ed 
can  never  hereafter  have  any  eftecl,  no  estate  at  irtl  pas-  (266) 
sedfrom  the  grantor — and  so  eit'ier  wa}  thi-  estate  intend- 
ed,  that  is  lo  say,  an  estate  of  frneliold  in  fuhiro,  is  void. 
But  to  view  this  case  in  its  (iro(»er  light,  the  proviso  in 
this  deed  is  a  ( oiidition.  The  word  proviso  is  peculiar- 
ly ai>pi'opriat<-il  by  law,  to  create  a  condition.  Litt.  sec. 
328,  329.  -2  Rep.  70  6,  et  seq.  Dyer  311.  Cro.  Car.  i28. 
And  as  it  IS  a  condition  lo  take  place  prior  to  the  estate 
intended  to  be  convened  to  the  grantee,  it  is  a  conditioa 
precedent,  tantamount  to  the  same  thing  as  if  the  party 
had  gianted  the  estate  in  fee.  upon  condition  thai  it  should 
not  lake  effect  until  after  the  deatli  of  the  grantor  and  his 
wife.  An<l  wiih  i-especf  to  conditiinis,  the  law  is,  th:!t  if 
the  coiiditiHii  he  subsequent,  to  defeat  an  estate  already 
cr<'aie(l,  and  repugnant  to  law,  it  is  void,  and  the  estate 
shall  he  absolute.  Bui  if  it  be  a  condition  precedent,  to 
be  performed  before  th'-  estate  can  vest,  and  be  repugnant 
to  liw.  it  can  never  be  performed  ;  and  for  want  of  a  / 

performance,  the  estate  by  the  very  terms  of  its  creation, 
can  never  arise — Such  conditi(Mi  cannot  bedispe-ised  with 
as  a  nullity — it  is  a  part  -'f  'lie  contract,  a  sine  qiia  non, 
and  its  illegality  will  have  the  effect  of  pieventifig  the  es- 
tate from  arising,  Shep.  Touch.  Pre  129  Co  iAtt.  206. 
Cro.  Eli%.  86+.  2  BL  Com.  156.  I  L.  Ray.  662.  If 
this  be  a  condition  piere<leiit,it  is  also  a  condition  repug- 
nant to  law,  as  the  s(  opt  and  view  ofitisto  make  a  iiee- 
hold  estate  pass  imiiiediately,  and  commence  in  posses- 
sion in/uluro,  and  must  therefore  have  the  effect  of  deleat- 
ing  the  estate  of  tlie  grantee  forever.  The  deed  iii  ques- 
tion. IS  not  a  feoff'inent,  conveying  a  present  estate  with 
a  n-pugnant  proviso  or  habendum  ;  for  it  is  expressly 
foiiod  he  died  seisid,  whici  pn.ves  the  immediate  free- 
h<dd  was  not  conveyed,  nor  delivered  over  to  the  grantee, 
without  which,  or'  the  circumstance  of  livery  of  seisin,  as 
it  is  called,  there  can  be  no  feoff'ment. 

His  not  gi>  ing  up  'he  possession  to  the  grantee  vviien 
thi-  died  was  executed,  iogeih<r  with  tin-  jiroviso,  is  a  full 
proof  that  it  never  was  intended  to  operate  as  a  feoff- 
39 


307'  haywood's  reports. 

Mar.  1796.  ment.     It  cannot  be  made  to  operate  as  such  without  open ' 
'^-^"^'"^^  violetice  to  the  intent  of  the  pHrties.     It  is  a  conveyance 
,  under  the  statute  of  uses — in  which  case  the  pro\  Iso  is 
good  S'l  fai,  a>-  that  it  must  be  considered  in  lorniins  a 
constr-uction  upon  the  deed  :  and  in  tliat  view  it  will  ap- 
pear to  he  a  condition,  to  have  effect  prior  to  the  cnm- 
menrement  of  the  estate  ui  John  Susser,  the  younger. — 
He  tiad   not  tlierefore  a  present  C'-tate,  but  an  estate  to 
(267)    commi-nre  infnluro — and  the  condition  upon  which  it  de- 
pended beinj;  repuj^nant  to  law,  as  it  attempts  to  make 
an  estate  of  freehold  to  commence  hifuturo,  and  b>-ing 
tlierelore  legally  iiuperforninble.  the  estate  dependant  up- 
on it.  namely  the  estate  in  John  Sasser,  the  younj^er,  can 
»  never  arise  nor  take  effect.     Tlie  consequence  of  this  is, 

that  John,  the  elder,  notwithstanding  thin  deed,  had  tlie 
estate  in  fi-e  in  him  as  before  the  execution  of  it.  and  a 
right  to  make  a  conveyance  to  his  daughter  of  that  es- 
tate ;  wliich  he  has  done  as  stated  in  the  special  verdict, 
by  the  one  or  the  other  of  the  deeds  there  mentioned.-— 
Till-  foriDiT  deeil  they  say  is  defective — it  is  not  necessa- 
ry f'lr  us  to  enquire,  whether  it  be  so  or  not — the  other 
de<  il  to  her  is  clear  of  that  and  of  all  other  objections — 
and  will  pass  the  estate  to  the  daughter  though  the  other 
deed  be  defective. 

Gen.  Davie — The  words  of  the  proviso  are,  "Provi- 
ded that  this  deed  shall  not  take  effict  during  the  lives  of 
the  grantor  and  his  wife,  but  the  premises  siiall  remain 
to  the  use  of  the  grantor  for  his  life,  and  then  to  his  wife 
for  her  life."  This  deed  is  either  a  deed  of  feoR"ment  at 
the  common  hiw,  or  it  is  a  covenant  to  stand  seised  ;  and 
if  it  be  a  feoff"ment,  the  proviso  is  void.  First,  it  may  be 
a  feiiff'nient  at  the  common  law — the  words  here  used  are 
well  adapted  to  tliat  instrument.  There  is  no  proof,  it 
is  true.  t)f  any  livery  of  seisin,  linl  immediately  after  this 
transaction  the  grantee,  or  the  feoffi'e,  as  I  would  call 
him,  was  in  possession,  and  continued  in  jiosscssion  lo 
the  day  of  his  death  ;  whicli  is  tantamount  to  a  proof  of 
liiery  and  siisin — and  beside,  our  at  t  of  1715  dispenses 
with  livery  and  seisin  in  case  of  deetls  of  feofl'mcnt,  pro- 
vided the  deeds  be  registered  in  due  time — and  consider- 
ing It  in  that  light,  the  proviso  is  clearly  void,  because 
repugnant  to  the  |)receding  part  of  tiie  det^d,  wliirh  con- 
vejs  i  fee  unrestricrively.  It  is  argued  by  J^Ir.  Taylor, 
that  thepruvisioiial  clause  in  this  deed,  is  a  condition  pre- 


Haywood's  beports.  308 

cedent  and  against  law — it  is  not  a  condition  but  a  limi- M^''^^^^- 
tation.     Co.  Litt.  201,     A  condition  is  a  quality  annexed  ^-^"""^^^ 
to  an  estate,  whereby  it  may  either  be  deteati-d  or  enlar- 
ged, or  created  upim  an  nncertain  e\rnt,  nn  part  of  which 
dennition  agrees  with  the  provisional  clause  in  this  deed. 
It  is  not  to  defeat,  enlarge  or  create  iht  estate  upon  an 
uncertain  event  wliich  may  or  ma>  not  happen — the  es- 
tate in  all  events  is  to  remain  a  fee,    nor  is  it  upon  any 
event  to  be  defeated  ;  neitlier  is  the  life  estate  in  Ihi-  gran- 
tor and  his  wife,  to  be  defeated  upon  any  event  whatso-    /'g5g^ 
ever.     Nuthins  is  here  left  fo  chance  or  future  occtirren- 
Ces,  every  thing  is  unalterably  fixi-d — then  if  this  be  a 
common  law  conveyance,  the  provrso  i«  a  limitation  le- 
puguant  ti!  the  estate  granted  in  tiie  former  part  of  the 
de'-d.     Shep.  Touch-  129.     Mr.  Taylor  seems  to  suppose 
that  tiic  word  proviso,  ex  vi  termini,  makes  a  on  litiim, 
that  is  not  so — it  inaj  lie  a  limitation,  co\enant,  comtiti- 
tion,  reservation,  &c.  Co.  Lilt.  203,  o  and  6,  20t.     2  Re. 
72.     A  proviso  to  restrain  the  geiieraiity  of  the  for.ner 
clauses,  is  not  a  condition — whether  it  be  a  condition  or 
not,  deijfcnds  u[>on  the  true  construction  of  the  deed,  and 
the  consequences  that  would  result  were  it  iield  to  be  a 
condition — if  these  were  such  as  would  defeat  the  tiiie 
meaning  of  tiie  contract,  or  not  promote  the  ends  it  had 
in  view,  it  shall  be  construed  to  be  something  else  rather 
than  a  condition — as  a  covenant,  limitation,  or  the  !ike» 
that  will  effectuate  these  purposes.     As  to  its  repue-nan- 
cy — if  it  be  a  proviso  repugnant  to  law,  it  is  void,  Fearno 
178,  179  et  seq.     Or  if  it  be  contrariant  in  itself;  or  al- 
lowing it  to  be  a  condition,  it  is  void  and  against  law  if 
it  attempts  to  defeat  only  part  of  the  estate  to  which  it  is 
annexed.     1  Re.  85  b,  86  b.     For  if  a  condition  at  the 
common  law  could  make  an  estate  cease  as  to  one,  and 
rc^  ivc  as  to  another,  for  a  |>articular  time,  the  breaches 
of  such  conditions,  wliich  in  their  nature  are  seciet  and 
not  notorious  acts,  might  privately  transfer  the  freeliold 
from  hitn  who  had  taken  it  by  a  notorious  act  as  livery  of 
aeisin,  or  the  like,  to  some  othi-r  person  ;  and  again,  by 
a  like  secret  breach,  from  him  to  another — so  Ihathewb* 
wished  to  bring  a  prcecipe,   would  never  know  agninst 
whom  to  institute  his  suit,  nor  the  lord  whom  to  call  up- 
on tor  his  services.     If  it  could  be  made  to  cease  for  a 
time,  .ind  revive  again  afterwards,  then  it  might  be  made 
to  cease  during  the  minority  of  heirs,  and  by  this  meanti 


309  Haywood's  bepokts. 

Mar.iwe.  flip  wardship  be  lost  to  th<'  lord.  Such  secret  modes  of 
^■^"""^^^  estafes,  (Vom  one  to  another,  are  agHinst  the  wlidc  poli« 
cy  and  fundami-ntal  principles  ol'thf  conimon  la\%,  wtiich 
ordained  all  transfers  of  real  estates  to  be  by  open  and  no- 
torious cererrmny .  Fui  tliernmre,  if  it  be  ;<  pro\  isn  or  con- 
dition calcniated  to  deprive  the  l><>ldci'  of  the  estate  of  ihe 
exf-rcise  of  some  pnwrr  wliicli  the  law  annexes  as  an  in- 
cident or  quality  to  the  estate  from  motives  of  policy,  as 
a  iirovi^io  or  condition  no<  to  bar  an  estate  tail,  it  is  toid. 
Shep.  Tinich.  ISO.  131. 132.  Litt.  sec.  723.  and  the  com- 
ment upon  Litt.  sec.  36(T,  361.  362.  An  habendum  Is  a 
material  part  i>f  (he  cli-id.  as  ii  performs  the  office  of  de- 
scribing the  estate,  or  quantity  of  interest  the  grantee  is 
f269^  to  have,  and  where  it  is  repugnant  to  the  premises,  it  is 
*  ■'  void — much  more  sh«ll  a  proviso  coming  both  after  the 
premises  and  the  habendum,  he  void,  when  repugnant  to 
both  :  and  that  it  is  void  in  such  case,  is  ahnndantly  pro- 
ven by  Cm.  Jae.  282.  Cm.  Eliz.  255.  1  He.  47.  '  5  Re. 
12.  9  Re.  Sundat/s  cast'.  lRe.96.  Rutgrant  that  the 
proviso  in  the  present  case  is  not  void — still  if  it  can  be 
so  construed,  as  legally  to  carry  into  effect  the  intent  of 
the  parties,  without  violating  any  rule  of  law,  it  must  be 
so  catisirned — and  here,  the  manifest  meaning  of  the  par- 
ties may  be  effectuated  consistently  with  the  rules  of  law, 
by  construing  this  «leed  to  be  a  covenant  to  stand  seised. 
2  Bac.  M.  498.  3  Dyer  272.  Cm.  Car.  366.  I  B.  M. 
410.  5  Bac.  M.  362.  7  Re.  13  6.  1  Bac.  M.  176.  5 
Bac.  M.  351.  CoTV.  600.  Hob.  287.  A  covenant  to 
stand  seis'd  of  an  estate  to  commence  infuturo,  is  good  ; 
for  so  much  of  the  ancient  use  that  was  in  the  covenantor, 
and  whi>  h  i'<  not  conveyed  out  of  liim,  remains  still  in 
him — and  in  the  present  case,  if  the  proviso  had  not  been 
inserted,  but  the  deed  had  convejed  to  the  grantee  an  es- 
tate after  the  lives  of  the  grantor  and  his  wife,  ihere 
Would  have  remained  in  them  a  life  estate  sufficient  to 
8U|>port  the  future  interest  of  the  grantee — and  surely  if 
the  law  W'uM  hiive  implied  this  without  the  help  of  the 
proviso,  a  pi'i  \  jsri  express  to  tlie  same  purpose,  will  not 
previ'iit  the  ilu'd  from  receixing  the  same  construction, 
utile  per  iv utile  nop  vitintiir — expressum  nonfacit  taciturn 
cessare.  As  to  the  place  occupied  by  this  pioviso,  being 
the  ' 'tter  part  of  the  deed  that  is  totall)  immaterial — 
no  n.iittcr  \»here'tis  Iti'id.  the  constrm  tion  must  be 
made  upon  all  that  appears  on  the  face  of  the  deed>-and 


TS^ 


K 


havwood's  repoktss.  310 

the  law  ill  making  il»e  proper  coiis'iurtion,  will  aasicn  Mar.i796. 
to  carli  nri'  nibcr  i.f  'lie  <l<-e«l,  the  ijtatioii  aiid  |iipre(leiirc  '^"•''^'^ 
il  otisht  to  poss<'ss,  thousli  it  nta)  haxe  heeii  iiiispiitred 
bj  the  inaVteiitiiin  or  uHHkilfuIncss  nf  the  di  awcr.  The 
true  ineaiiiti!^  of  the  iii'<trtiinetit  Is  to  l)e  rullerled  from  the 
>yholc  contents,  without  rej^ard  to  the  order  in  which  <he 
several  clauses  are  actually  placed.  Accnrdii'};;  to  (his 
arratigeineiit,  ijie  true  n)e;iniiit;  of  this  iIchI  will  he,  to 
St:(nd  seised,  first  to  the  use  of  the  grantor  for  life,  and 
the  life  of  his  wife,  and  afters  ards  to  the  use  of  the  srran- 
tee  ill  fee.  Every  part  of  this  nn  aning  is  dearly  expres- 
sed in  some  one  or  other  of  the  parts  of  this  deed,  and 
when  you  ref -r  them  (o  the  several  periods  when  they 
are  to  take  effect,  they  necessarily  assume  this  order. — 
There  can  no  reason  be  f!;iven,  why  the  deed  siiould  not 
be  so  construed,  and  if  it  be  so  construed,  every  objection  (270) 
-to  its  validity  and  legality  immediately  vanishes — so  that 
whether  it  he  a  feoffment  at  tiie  common  law,  or  whether 
it  be  taken  as  a  conveyance  to  uses,  in  cither  case  the 
Plaintiff  is  entitled  to  recover. 

Judge  Stonk — I  am  satisfied  judgment  ought  to  be  gi- 
ven for  the  Plaintiff — tliis  is  a  (ovcnant  to  stand  seised. 

Judge  Haywood — I  am  also  satisfied  in  my  own  mind, 
that  judgment  ought  to  he  given  for  tl.i  Plaintiff;  but  I 
have  reasons  for  declining  to  give  my  opinion  judici»lly, 
unless  it  shall  become  absolutely  necessary.  I  was  for- 
merly apidied  to,  while  at  the  bar,  for  m\  opinion  on  this 
very  deed;  and  after  consideiaiion  gave  the  same  I  now 
entertain  : — Let  it  lie  over  till  next  term.  Judge  Macay 
will  then  be  here  : — if  lie  should  be  of  the  -,ame  oj)inion 
with  the  Judges  now  jiresent,  judgment  will  of  course  be 
entered  for  the  Plaintiff. 

NoTi. — Tfie  reasons  of  the  Judges  now  present,  Wfre  not  four.ded 
upon  the  arguments  abmit  repus^nancy — no  part  of  a  rieeil  is  ivpug- 
nantbut  that  which  cannot  consist  will,  the  oth(r  parts,  unless  we  se.eak 
of  a  repugnancy  to  rules  of  law.  It  is  hy  no  means  inconsistenl  wiih 
an  estate  in  fee  in  remaiiid'T,  that  another  shtiuld  first  li  'Ve  an  estate 
for  life-neither  is  it  necessary  to  iiiqiiire,  whether  the  deed  in  ques- 
tion, was  intended  to  operate  as  a  deed  at  common  law,  or  iindi  '■  the 
statute  ot  us.s :  for  whether  intanded  as  tlie  one  or  the  other,  it  it 
GOiild  not  operat.  effectually  in  the  way  intemled,  it  will  operat»  in 
some  other  way  in  which  ii  may  be  efl'ectiiul.  'Jhere  can  be  no  doubt 
of  this  rule.  A  deed  intended  to  openite  us  a  (eolTnienl,  may  be  con- 
strued a  covenant  to  stand  seised.  1  Mk-  8  //.  S.  It.  614.  There 
cani'ot  be  the  least  doubt,  uiir  th;il  ;i  covenant  to  st;nid  seised  to  the 
use  of  another,  after  one'.,  own  life,  isgoud  to  pa^s  the  estate  intendeds 
for  the  law  raises  in  the  grantor  an  estate  for  life  in  the  mean  time. 


311  Haywood's  bepor'i>€l, 

Mar.1796.  sufficient  to  support  the  future  estate.  Co.  Litt  22,  6.  This  has 
V^-v^^  beer,  al'eadv  I'er  ded  in  a  vast  number  if  ii.slsn'e^.  riicr*-  '»  np 
pplnl  htt'rr  established  bv  uHioritiev.  1  «o.  175,  178,  98,  159,121. 
2  Mo.  207.  3  Mo.  237.  2  Vet.  255.  4  Jllo-  1 19.  2  L.  Rai/  855.  I  L. 
Bay.  34.  Tlifre  can  be  no  dount  in  tbt-  present  Cise  .>■.  t  >  whai  was 
the  meaning  olthf  parties,  u\u\  the  only  qn.  stitm  is.  «h-rtl.  v  it  is 
po^'^ihle  to  pill  such  a  cnnsirnction  iipoii  the  ileed,  (TWe  1  Nets.  Jib. 
487.  488,  «.  16,  17,  18,  19,  20,  22.  3  Nels.  96.  s.  18.  Fearni:  on  Cont. 
Item.  30  33,)  as  to  niakfi  thut  inieiit  consisttnt  with  thi-  rules  of  ti>w: 
and  if  the  hiw  will  imply  an  estate  for  lif<-  in  the  grantor,  where 
nothing  i?  said  about  it,  in  order  to  sii;)port  the  estate  in  remainder, 
surely  it  will  not  rt ject  sucli  estate  when  laised  by  the  express  words 
of  the  parlies.  Here  that  is  done,  and  he- ides,  the  very  case  now 
before  the  court  was  decided  not  long  since,  and  is  repofted  in  4 
Term  181.  There,  there  » as  a  conveyance  exactly  like  the  prtsent, 
and  a  (iroviso  of  exactly  the  same  import,  placed  in  the  same  part  of 
the  detd  ;  sn.i  the  c.'uit  decided  it  was  nut  a  repugnant  proviso,  but 
consis'enf  with  the  estate  granted  in  the  d^  ed,  and  that  the  e.'rtates 
mentioned  in  the  deed  were  well  raised.  Viile  1  iVV/«.  408,  t.  22.  1 
Rep.  101,  154,  b. 


(2n) 


Se[»tember  term.  1796.  This  spprial  verdict  was  again 
arguerl  before  Jiidjjes  M.4cat  and  Stujje,  and  thoy  gave 
judgmeni  for  the  Flaintiff. 

Note — It  will  not  be  improper  here  to  observe,  that  this  opinion  of 
three  of  t!ie  pres'^nt  Judges — f"i)un<Ied  upon  consideration,  after  ar- 
gument l^y  coiin'.Fl,  upon  a  case  made  by  a  speci:d  verdict,  is  directly 
against  that  of  Ward  aid  Want,  decide'!  as  to  this  point  at  Halifax, 
April  term,  1793.  That  was  an  K.jectment  cause,  upon  the  trial  of 
which,  a  question  arose  upon  adeed  ofharpaln&sale,  madetothe  lessor 
of  the  Piaintlti'  by  his  father  in  the  year  1771,  of  the  premises  i'l  que> 
tion,  which  conveyed  the  whole  estate  absolutely  to  tiie  bargainee  ; 
but  in  the  premisi  s  of  the  deed,  ther'  is  an  exception  of  the  grantor's 
lifetime,  in  any  part  or  parcel  of  the  land — wheilier  the  lessor  of  the 
Plaintiff  took  a  fee  by  this  conveyance,  as  a  life  estate  was  reserved 
to  the  grantor,  was  tlie  question. 

•  Davie,  for  the  Uelcndant,  laid  it  d^wn  as  an  established  rule  of  law, 
that  a  fee  cannot  be  created  by  deed  to  takv  effect  or  arise  in /u/uro  ,- 
and  here,  he  said  the  f.rantee  was  noi  to  take  till  after  the  grntor's 
death.  The  Attorney  General,  Haywood,  entered  into  »  discuksion 
of  the  doctrine  of  use-.,  to  shew  that  the  use  might  be  limited  to  lake 
effect  in  this  manni  r  by  the  statute  of  uses,  although  it  would  not 
have  been  good  at  the  common  law. 

Per  Curiam — Ashe  and  Williams,  to  the  Attorney-General,  we 
differ  with  you  in  opinion  in  respect  to  the  op- ration  of  the  statute  of 
uses,  but  we  are  elearly  of  .pinion,  tlia'  lure  the  fee  ilDlDediately 
passed  to  the  grantcei  and  that  the  reservation  is  void- 


# 


HAYWOOD'S   BEPOKTS. 


312 


■  V.  Sianton. 


Mar.  ir96. 


Notice  need  not  be  piven  unc'er  the  act  of  1762.  Hev.  c.  70,  s.  3,  to 
the  drawer,  if  lie  lias  no  cff.  cts  in  the  hands  of  tl>e  drawee.  The 
receipt  of  paitnfthe  money  from  the  drawee  does  not  discharge  tlie 
drawer,  aiul  is  to  the  bHiancc  lie  is  entitled  to  notice  only  wlien  he 
would  be  so  in  case  of  the  whole's  being  unpaid. 

Tlie  case  was,  one  man  diew  an  ordci'  on  another,  in 
favour  of  a  thifd.  anil  soon  .tfrcf  nio\c(l  away  to  another 
State — tlie  di-awee  paid  oarl,  and  refusi'd  to  p<y  the  re- 
sidue, anil  it  WIS  pi-oiest'-d  as  to  that  par'.  Tliree  or 
four  years  aClerwai-ils,  the  drawer  ri'tiirned,  and  was 
sued  for  tlie  baiancis  ihe  money  beina;  fust  deinandi'd  of 
him  by  tlie  pavee.  It  \v»s  argui'd  for  the  Defendant,  that 
by  ir62,  c.  9,  s.  5,  the  drawer  onj^lit  t»  huve  had  notice 
of  tiie  refii.sal  to  p«y  in  a  reasonable  time — the  words  of 
that  .sect  ion  being,"  that  no  piisoo  or  persons  wltHtsoever, 
shall  prosecute  any  .suit  jt^ainsi  any  per.son  or  persons  who 
shall  give  such  order,  fn-  ihe  money  therein  mentioned,  be- 
fore the  same  shall  havo  been  first  jirotestcd  I'or  iion-acccp- 
tance,  &  notice  i;i\en  thereof  to  the  drawer  before  such  suit 
shall  be  biought;  and  if  any  suit  shnll  be  bron!;;ht  on 
any  such  nrder,  befoi-e  notice  and  refusal  to  pny  asaf  ire- 
saiil,  the  PlaintiH'or  IMainiinTs  shall  be  nonsuit,  and  pay 
costs;"  and  for  wani  of  such  notice  be  is  diHcharged. — 
Al.sd  a  receipt  of  part  from  the  iliMwee,  is  a  giving  of 
credit  to  him.  and  discharges  the  drawer. 

Per  curiam — Where  the  drawee  has  no  effects  of  the 
drawer  in  his  iiands,  ilieie  is  no  necessity  I'or  notice  of 
non-acceptance  to  the  drawer;  foriientust  know  witiiotit 
notice  that  he  bad  no  eftects  in  the  o'lier's  Iiands,  and 
the  design  of  notice  is,  iii:it  the  drawer  may  be  warned 
in  time  to  get  his  elTects  out  o';  the  drawee's  hands — of 
course,  where  there  are  no  eifects  in  the  hands  of  the 
diMWee,  such  notice  i,s  u.seless  and  vain.  As  to  tlie  re- 
ceipt of  part  from  the  drawee — that  is  for  the  benefit  of 
the  drawer,  as  it  discharges  .so  much  of  his  tiebt  due  to 
the  payee.  This  was  formerly  held  otherwise,  and  even 
now  where  the  drawer  may  sustain  a  loss  for  want  of 
notice  of  non-payment  of  the  balance,  lie  must  have  that 
notice.  Notice,  however,  of  non-payment  of  Ihe  balance, 
ca'inot  be  necessary,  where  notite  of  the  whole  Would 
not  be  so.     The  fourth  clause  of  the   act   of  1762,  c.    9, 

ak.  s  notice  necessary  only  in  cases  of  an  order  dijftwn, 
directing  money  in  the  hands  and  poseeesion  of  a  second, 


(272) 


313  Haywood's  beports. 

Apr.1796.  to  bc  j)aid  to  a  third  [lei-soii — the  notiee  dipertcd  hy  this 
*'^'"^''^*^  act,  is  coitfiiiid  to  siirh  orders  only — this  is  rmt  such  an 
order,  if  tliere  was  not  aiiv  money  in  tiip  hands  or  pos- 
session of  the  drawee,  so  far  as  rcgardu  the  balance. 

NoTR — Vide  Pun's  Ex'rs.v.  Kdly,  2  Bay.  45.  But  see  Auslinv. 
Rodman,  1  /lavks  194,  in  which  it  was  held,  that  the  drawer  «l  a  bill 
of  exchange  was  eniitl'rfl  to  notice  of  its  disbonur,  though  tht  dr.iwee 
be  nut  inck-bted  to  him  either  when  the  bill  was  diawn  or  fell  due, 
provided  the  drawer  had  reasonable  ground  to  'i^lieve  t'lat  it  wuiild 
be  h' I'ored:  .ind  a  written  iuihorit>  from  th^  drawer  td  th>-  dr.v.er 
tu  dra ■<  is  sufficient  ground.  See  also  2  Am.  Ed.  of  2  vol.  Philips  on 
Evidence,  37,  38. 


EDENTON,  APRIL  TERM,  1796. 

Hagan  v.  Paine, 

A  consignee  was  instruited  to  exchange  the  consigned  produce  for 
till'  t  Su'-in:im  ;  when  he  arrived  Ihert-,  he  found  it  iinpr.<ciicable 
to  mak.  thft  exchang  for  any  thing  but  Sugar  :nd  Coffee,  which 
wer  cimtraband  by  the  Uvv  of  that  couinry  ;  but  still  such  kind  of 
traffic  WHS  usual,  and  the  law  had  no!  becii  enforced  against  it  for 
many  vears.  The  cunsigi.«-e  venture  '  to  inalce  the  exchange  for 
tht-  contraband  articles,  but  owing  to  an  attempt  to  enforce  thi-  law, 
he  'i  il  'o  resort  to  i  subte  tuge,  i  i  the  loin  :  of  which,  some  of  the 
Suj^ars  were  damaged :  held,  that  be  was  not  rt-spunsible  for  the 
loss. 

Case.  JVoii  asHumpsit,  ^x.  pleaded.  The  case  upon 
the  cvideni  e  «as  this:  Hagan  had  shippcij  on  two  ves- 
sels iif  the  Oel'endant,  destined  to  Surinam,  seventeen 
h'-g-'liead"'  of  lobacro  and  forty  barrels  of  pork,  ronsigu- 
irij^  them  t"  Paine,  t'oi-  hini  to  exchange  lUvm  foi-  goodn  of 
the  production  of  Snriiiain.  to  be  brought  in  reliirti  to  iliis 
State.  'I'lie  vessels  atid  ••arifoes  arrived  safely  at  Suri- 
nam, hut  the  cargo  rouM  be  sold  lor  nntl)ing  but  tlie  pa- 
per currency  of  that  country — neither  mt)l»sses  nor  spe- 
cie could  be  procured  for  it. — it.  could  he  exchanged  for 
notliini;  but  sugar  »r  coffee,  each  of  which  was  contra- 
band b.>  the  law  of  tliat  country,  but  were  oolwithHt<ind- 
ing.  usually  aiul  conimouly  pnrcha.seit  by  the  ships  aod 
vessels  iif  ail  nations  resorting  thither,  and  there  had  been 
no  instance  itf  a  scisure  or  inform  itioii  longed  with  th<'  of- 
ficers of  iiie 'govert'inent  lur  many  yeai.s — llie  tot^acco 
Was  eX'hai' ji-d  for  sug.us — anil  alttr  liiey  s<ere  shi|i|iedr 
a  vessel  in  the  harbor  laden  with  iiugai*,  was  seized— >i< 


uaywood's  reports.  314 

then  became  npcessrtry  I o  re-lii)ifl  the  -iiajiifs,  antl  have  Apr.  1^96. 
th'-iii  (■•iineyeti  tn  anollitM-  par;  oT  tlii'  se;i  loasl,  aii'l  for  ^■^'"^'"^•' 
th'  D-rfii;lHiii'>^  v.s^els  to  dcparr  hh  it  foi'  thfir  linnvw  icd 
vo»aji;e,  arid  tu  return  .seci'etlv  and  take  in  the  suyju'^i.— 
All  this  wa-  (lone,  and  ahout  nne  liaif  ol'  Mic  snffirs  were 
losi  in  til  •  operation,  ajettiiig  wet  wiien  put  info  the  flits— 
the  xe-is-ls  took  in  tlie  sugars  in  tliis  damased  state,  and 
carried  iheni  to  Gu.idalou|ie. 

Counsel  for  the  Plaintiif — A,  factor.  U3;ent  or  consignee 
ought  to  pursue  the  dircclioiis  given  i>y  his  prinrinal  with 
respect  to  ihc  goods  roniuiitted  lo  his  cai'e — if  instru(  te.d  C273) 
to  sell  for  really  money,  or  to  sell  generally,  which  is  for 
re;Hly  money,  hecanno'  sell  upon  creilii,  without  running 
the  ri>k  himself — if  h.-  fails  lo  pay  customs  in  a  foreign 
port,  he  runs  ihe  risk  of  Uie  forfeiture,  if  any  should  ensue 
thereupon — if  he  aitempis  to  transpoi-t  goic's  proiii'iited 
to  bf  exported,  and  liis  own  government  -jliould  seize  the 
goods,  the  loss  is  his  own.  2  Mo.  100.  Vide  3  P.  PFil. 
185,  187",  279.  Coxv.  255. 

Econtra — It  was  argued,  that  thnugii  in  general  the  law 
is  as  stated  on  the  otiier  siile  respecting  fact  irs  o<  ron- 
signees,  and  their  consignments,  yet  SdUietimes  impo^.'Jitia 
f.xaisat,  legem.  Exceptions  may  be  made  to  tins  gi-m  ral 
ruh'  wirre  tlie  Defend. uit,  the  consiuni-e,  prove-i  to  the 
.satisfaction  of  his  jury,  that  it  was  impo-sible  to  conply 
with  the  terms  of  the  commission  gi\e'i  !>>  liis  pri'ic(j»al  ; 
if  he  cannot  sell  for  ready  money,  when  •■in|)ovM'rc(l  to 
sell  ;  and  that  is  implied  in  the  case  in  2  Jtfo.  100.  waere 
one  of  the  reasons  r.  ndered  hy  lite  court  (or  tiieir  jodg, 
ment,  is,  for  tliat  he  did  not  plead  he  could  not  sell  for 
ready  money,  implying  if  ihis  hait  a|ipi  ared  to  tiie  court, 
th'ii  judgment  would  ha\e  been  (liffceot.  By  paiii\  of 
iCHSon,  if  he  could  not  exchange  the  c  Jii«igiied  good  '  ir 
goods  of  the  counti-y  Ih.t  were  leg  >!  y  eX;.i>rt-ible,  though 
in  general  he  ought  not  toexcii.mge  lor  contialianil  s;o.id-.; 
yet  in  a  case  like  the  present,  where  such  goods  i.i  the 
common  course  of  trade  were  usually  and  generally  pup- 
ch  ised,  and  it  was  generally  thought  not  to  be  unsafe  to 
purchase  them,  there  ought  to  be  an  ex'epn  .11  Iroin  ihe  ^. 

general  rule — and  ot  tliat  opinion  ■  ■10  0  voio  —  od 
till  >  •■•  was  a  verdict  for  the  \  alne  of  the  sugar*  saved,  and 
iudgment 

40 


315  uatwood's  reports. 

Apr.  ir96.  Black,  Assignee  of  Blanchaid,  v.  Bird. 

A  neg  itiable  instrum  nt  in  the  liands  of  nn  assignee  is  not  subject  to 
an)  payments  that  <lo  no;  appear  encU)^^ed,  if  it  was  assigned  tv-tore, 
or  at  the  time  it  b'Cainr  due  :  but  if  it  was  assigned  after  it  bi  came 
■due,  'hsn  all  such  payments,  as  it  can  be  presumed,  the  assignee 
liad  noticf  of,  shall  be  god  against  it  An  assignor  and  assignee 
are  b.  'h  members  if  (he  S;ime  firm  ;  a  bill  is  made  payable  to  the 
assignor,  cxpres-ed  in  hv  for  a  deht  due  the  firm  :  a  payment  to 
the  0'  mpany  will  ue  a  good  paynent  against  either  the  assignor  or 
assignee  inemiiers  of  that  company. 

Action  upon  a  bill  scaled,  for  two  hundred  and  rorty< 
two.ii'iuiids  sixtei'ii  sliilliiij^^s  and  ton  pence.  Virginia  mo- 
ne\,  (layiililp  l)\  Bird  to  Blancltard,  twenty  days  aPer 
si.nl  t  ;  txpn-ssed  to  be  lor  a  debi  due  from  Stuart  to 
Bltinchurd  dj-  Co.  ami  daied  in  Ma>.  1792.  A  Clerk  of 
Bliincfiard  ecttxed  248  bariels  of  far,  at  lite  rate  oi  six 
sli'llii  sjs,  Virjjinia  inimey,  per  barrel  ;  and  in  March, 
1793,  Blavcliard  icciived  from  Stuart  1500  bti>helsof  H-.tlt, 
at  tiirer  sliiilin^s  per  bushel  ;  in  all,  amounting  to  about 
the  sunt  menti'tiitd  in  tbr  bill.  Black  was  a  partner  ol" 
the  company  of  BLanchard  Sf  Co.  ;  the  eitdorsement  of 
Blancltard  «as  blank,  so  thit  it  <lid  not  appear  when  ihe 
(274)  as^i.u;iiment  to  Black  nok  piare  ;  but  a  letter  from  Black 
to  Bird  was  jirodiited,  dated  January,  1794,  which  in- 
forms Bird  that  he.  Black,  had  the  boixi  in  possession, 
and  required  putnlcni.  Upon  tlii^  evidence,  the  cause 
was  aigiied  at  tin-  bar  at  !;'r)'at  lent;tli  on  both  sides. 

Etpercnriam — This  bill  hstib  been  discharged  by  Stu- 
art 111  ihe  <1eli>eiii's  of  salt  and  tar,  |)i'o\en  in  the  cause. 
Tiie  (|iiestion  is,  as  these  deliveries  were  not  enilorsed. 
nor  tlie  bond  taken  up,  whe'her  they  are  to  he  consider- 
ed as  a  good  payineiii  as  to  Black,  ihe  assignee.  As  to 
wbiih.  llie  roiirt  is  iif  opinion,  liiat  this  bill  is  a  bill  be- 
lontjiiig  III  Blanchard<^-  Co.  ibougb  niadir  |)ayable  to  Blan- 
chard  only.  Ir  is  expressed  to  be  for  a  debt  dtie  to  the 
company,  and  is  gi\en  to  a  partner  as  one  of  the  compa- 
ny. Blanchard  is  only  in  the  nature  of  a  trustee  for  ilic 
while  company;  his  act  is  binding  upon  the  whole  com- 
pany. The  ci.mpany  after  this  transaction,  could  not 
support  a  suit  upon  the  open  account  against  Stuart. — 
Tin  n  the  payment  having  b'  en  made  to  a  Clerk  ot  Blan- 
chard, it  is  a  iiaymeni  to  Blanchard  ;  and  a  p-.iyment  of 
a  partnership  debt  to  him.  bctii.':  ■"•lenf  the  jiarinefs,  binds 
the  wliule  partnership ;  and  Bluek,  the  assignee,  is  one  of 


Haywood's  uEPonTS.  316 

them  :  wlierefoic  tin-  pitj  iner-t  is  a  ,t;iio'l  one  as  fo  Blnck.  ^f"*  ^''^^• 
l^hp  pi'psi'iii  Ph'intiiT.  S< cori'lly,  sii  p'  -iiii.!;  tl  is  imr  lo  ^•^~^''''*^ 
him-  been  it  prtriiici-sliip  liciiul,  liiit  in  lulort-  lo  lilunchard 
only,  h'dvirijr  been  rriMiii'  payHldc  (o  l.ini  onl)  ;  \e  ,  tlie 
cifcmiis'iMice«  of  iliis  cnsv  Cfnder  it  |iriibMblc,  tlmt  tin'  as- 
sig'iinc'it  WHS  lint  (iiaHc  till  after  'he  pa^  mpii'--,  proljably 
not  till  sonietime  nboiit  tlif  b"p:iiiiiiiig:  "f  i  794  :  ;ui(l  hen 
this  bill  was  assii.Mie<l  a  } .  ai-  and  six  nn  i  tlis  altei  it  was 
payable.  If  a  j>aper  be  .i>-si^iipd  m  ilie  time  it  is  pHja- 
bjp  01  before,  and  no  pn\nMi>l>  nidoisnl,  Ibi  ;issie;tipc 
will  hold  dis(liait;p»l  "f  ill  pavnietit'-  ihnt  iiii'y  have  luen 
made  previous  to  the  assigniiietii  :  but  if  that  be  made 
after  the  day  of  payment,  ilieii  the  Jiny  are  at  liberty  to 
take  into  considi'iaiion  anv  rirrniiistaiires  from  whpnce  \ 

they  may  reasonabi}  prrsniiie,  the  assignee  knew  of  the 
payments.  The  presumption  is  stienjjtliened  in  propop- 
tion  as  (be  time  of  the  as-igrmient  is  at  a  _e;ieater  or  ^iiort- 
er  distance  fi urn  the  time  ^f  pajment,  and  in  the  same 
proportion  itiese  collaieral  rircunistanres  will  haie  the 
greater  or  less  weiicht.  In  the  present  instance,  a  .yieat 
length  of  time  has  intervened,  ai;d  therefore  a  slight  ric- 
Ciimstance  will  do,  to  raise  a  [iresumption  of  notice  of 
these  payments  in  the  assignee.  After  such  a  length  of 
time,  wh)  did  not  Black  make  some  enqtiiij  o(  Mr.  Slu-  /q»-^ 
art  respecting  tins  bill,  before  he  took  the  assignment  ?  ^  •' 
Had  such  enquiiy  been  made,  he  would  not  have  taki-n 
the  assignment  at  all.  The  length  of  time  was  enough  to 
put  him  ujton  enquiry,  jet  be  inacle  none.  Atld  to  this, 
that  from  his  situation  anil  connexions  with  Blunchard, 
it  maj  be  presumed  he  might  have  known  sornething  of 
the  transactions,  had  he  taken  proper  i  ains~  If  the  j.ry 
believe  he  might  have  had  knowtedge  of  the  payments  by 
enquiry,  then  they  should  find  for  the  Delei.di'.nt — oilier- 
■wise,  for  the  Plaintiff,  i'hey  found  for  tlie  Difendant. — 
Cases  cited,  3  />.  ^  E.  81.     H.  BL  Sep.  89. 

Nmr-.—Vide  2d.  .4ni.  Edit,  of  the  2d.  Vol.  oj  Philips  on  Evidence,  p.  « 
34,  111  tlif  no.e  wlieir.  .ht  I   .v  Til;.'ive  tu  ncpo  labli    iiviriinK  ins  i  ihe 
Ji.  ncis  of  an  a8sign<t ,  is  dscusseO  j    and  "•    distinct    '■■  taken  in  this 
ease,  is  fully  supported  by  many  authorities,  both' £nglisti  anil  A?n«. 
riesm 


# 


317  HAYWOOY>'s    KEPORTS, 

^^.^„^'  Whitbie's  AtlmiiiiHti  arcM-s  v.  Frasier. 

If  the  husband  dies  liefore  administraiion  taken  upon  his  wife's  cliout 
in  action,  her  admini'j  rator,  »nd  •<>!  his,  is  the  proper  prr>.Mi  to 
admiiHsl'  r  them  :  but  Hie  husband's  representative  will  be  cniilled 
to  the  surplus  aper  payment  of  her  debts. 

D'  'inne.  The  imnher  made  a  gift  of  the  negro  in 
qiHsfi"!!  Id  Sarah,  thf  daut;luer.  tu  Inke  i-flTert  in  [loiises- 
sioii  after  tlif  ileatli  of  llu'  nn'tlicr.  Sarah  married  and 
died,  and  then  tin' innlhi'r  d'ld.  The  husband  sur-NJviiig, 
aii<)  I  St  of  all  the  IniKboiid  dird,  \\i<liout  taking  admin- 
istration to  Ills  wife.  The  adininistraior  of  Sarah  i>«»w 
an  s  for  the  negro.  If  was  ohji-ned,  that  fli'-  |iro|ii'ity 
in  ilie  negro  passed  into  the  hnshand  upon  the  deaih  "f 
the  «ife,  he  being  her  next  of  kin  ;  that  he  was  entitled 
to  ^niministratinn,  and  v^as  not  liable  to  make  disiribntion; 
and  tliough  he  died  before  -.idmiiiistration  'akeni>ut.  Iliat 
CaiiH'  t  prejudice  him  wi(h  respect  to  any  right  lieli:<<las 
nex'  o(  kin — that  his  wife's  per-onal  estate,  ttot  yet  re- 
dn(  (1  into  possession  at  her  death,  \ested  in  hini  as  a  le- 
gary,ui-as  a  distributive  sliarc,that  ^^illgoto  therepresen- 
taii>es  of  the  shai-ei  ;  and  that  as  this  was  a  vested  in- 
terest in  the  hiisbanti,  his  re|)resenlatives  succeeded  to 
Lis  rights,  and  not  the  reitresentatives  of  the  wife  :  and 
theiefdi-e  they,  and  not  the  representatives  of  the  wife, 
are  entitled  to  this  action— and  for  this  were  cited  1 
Wils.  168.  5Jtk.5S7.  Lovel.TS,  B2,  85.  Pre.  cA.  21,  .-60. 
3  P.  Wil.  443.  'I  lie  n-nrt  took  time  to  cunsYder,  in 
ordef,  as  they  said,  that  this  cause  might  be  specially 
made  lip  for  the  further  consideiatitni  of  the  Judges, 
should  the  objection  appear  upon  further  reflection  to  be 
of  weight  enough  to  raise  a  set  ions  dtnibt ;  and  alter  some 
days  consideration  the^  git^e  their  opinion. 

Fer  cariam — It  is  not  necessary  to  make  up  the  special 
easr  ;  this  action  was  formerly  brought  b>  the  admixis* 
•  trafoi-  of  the  husband,  and  determined  by  two  Judges  to 
ha\e  been  improperly  brought  for  that  \ery  reason.— 
One  of  the  conn  now  present,  on  hearing  this  matter 
f^^G)  first  moved,  was  inclined  to  think  the  action  shtnild  linve 
been  III  the  name  of  the  administrator  of  the  husband, 
but  upon  further  consideialimi,  he  is  convinced  of  his 
misiHke;  and  it  was  occasioned  by  nol  distiiigiiisi  jug 
be*\>eeii  ihi  right  <if  |)ropeit),  ami  tin  riglit  of  iciioii.— 
It  is  a  true  positiuu,  that  the  properly  of  this  negro  was 


havwood's  VET'OHTS.  *^' 


n'piisi»iiiti%f  of  liic  lii,si:Mti(l,  in  tlip  satno'^f'    '     ^• 
li-g-.  <  >  is  ve>iij(l  ill  t'u'  l(  jofati'c.  ov  a   (listri- 


vesfed  in  the 
rniiM.  <r  i»s  «  li 

biitin'  -iiHn  ill  'lilt'  -.f  (he  next  of  kin.  wh"  if  he  dies  will 
tra>'>nii(  his  sh.if  lo  his  lepiesentatixc — ill  this  case  the 
Iiii^h:iii(l  Avas  t'liiitled  as  in'Xt  of  kin.  antl  not  as  hn'-h:uid, 
and  hy  Itis  ile^ilh  ha<h  tiniismittt-d  the  lit^ht  lie  hnd  to  his 
ripiescnlauNf — thst  wns  011I3  a  riijht  td  demand  tlie  ne- 
§i-' of  the  ;ulmini>-ti'at()r  of  !lir  vvif"  hI'it-  liehts  caid. — 
No  [11  isoi,  is  eiitiiln!  to  re( ( i\t  tills  nciiio  in  tlie  fii'^t  in- 
st  inre.hut  inilj  as  a<lministratoi  o(  th*  witr,  to  the  end  that 
her  property  in  the  hands  of  iiev  adiviini.slra'oi  may  be 
sniiidl  (n  the  pa\  nn'nt  of  all  just  ilehts  eoniiact.'d  by  hei- 
dwiii  sola — th<  husband  was  iodei-d  entitled  to  be  hi-i-  adr 
ininisiiHtiif.  hill  he  did  not  apply  ;  anothei-  n)ie;hi  be  ap- 
pointed, u  ho  will  be  a  Iriisue  i'ln-  the  iinsliai'd  as  t(.  all 
that  pait  oC  ihe  \,\  lie's  rhoscs  in  arli(n?,  tiiitt  so'h  admin- 
istrator shall  'ecovee  or  (jet  in  abov  e  what  will  sa'tsfy 
her  debts.  This  ailniinistiator  is  entitled  in  'hi'  fi  st 
plare  to  the  possession  of  all  Inr  ehoses  in  artion.  and 
is  aecotintable  to  the  hnsband.  r.v  the  repi'esi'ii'a'ii  1  s  of 
the  husband,  in  the  same  niimnei-  u'^  he  would  beat('"iiiit- 
able  in  other  intesi-tcies  to  a  distribntivr  shacei-  ni.d  his 
rcpi'esrntiiti\es — so  it  would  be  of  no  use  to  ini;ki  op 
this  special  case,  all  the  Judg;es  of  the  State  bei"f;of  n'lis 
opiriioii — the^other  Juduies  now  upon  Ihe  otht-r  cirenit, 
ha«ini;  decnied  this  very  case  before,;  and  ihe  tvMi  o>i\v 
present,  bein^  ol'  the  same  opinion.  So  the  Plaint  iff  ftad 
jndffoient.  The  court  relied  upon  Co.  Lift.  351.  H.  B. 
/?e.',j;J8. 

Note. —  Vide  Toller's  Law  of  Executors,  116  &  2ir,  where  it  is  said 
that  .Uliniigli  it  wa'i  formerly  lielil  ihal  if  the  liusbanfl  'lies  vefore  tak- 
ing out  atlmiiiistntioii  upon  liis  d'  ce3s»rf  wife's  choses  in  :icti»n,  hii 
reprcsmtativi  will  be  entitled  to  a(Imini-.ter  tliem,  yet,  it  if  now  es- 
tablished that  her  next  (if  kin  in  such  case  is  entitled  to  the  admini-lra- 
tioii,  bill  he  will  Df  accoiii'taiile  lo  Ihelnisba'  fl'sri>ni"seiitaiiy>  :■•'•  .he 
resi  1  e  of  tiK'  property  after  pivm  nt  of  ()eht-  &'.  1  P  llillinms 
382.  Har  ii  But.  Co.  Lit;  351,  a.  noie  1.  4,  Bum.  Eccl.  Zu»«,  J35. 
See  also  Neale's  Mm'r.  v.  Haddock,  Con.  Bop.  75, 

Murfree  v.  Reddiniy. 

Makinp  a  man  master,  and  giving  him  command  of  a  ship  is,  ipso  facto, 
givinj*  him  power  to  take  a  load  for  freight  in  a  foreign  port ;  and 
hi^  contract  in  such  case,  binds  the  owner. 

Bill  in  Kquity  and  ausvver.     Redding  had    recovered 
ittdgiuent  against  Mnrfret  for  a  negro — MiirfxeC'  com- 


319 


HAYWOOn  8  KBPOHTS. 


Apr,  l''96.,,^j,;„p,^^  j^,,^  Rtrttnl  in  l,is  bill,  tlmt  TleMing  lia«1  put  one 
Scrunfon  on  hiinal  liis  Krig.  a«  master,  Hiid  sont  liiu>  with 
a  lo-iil  from  Nowbcrn  to  Mnrfipi  slxirougli,  and    tlint   lie 

li»d   piit  ill fffo   on  hoard  with   him.   wnd  aiitlniiizcd 

Scravinn  to  si'll  the  iiea-ro.  'I'hi'j  flu-  an'^ver  denie-,I. — 
Tlic  bill  ruitliof  stxtid,  iliat  Scranto:i.  whilst  at  Mtir- 
free'-boi-diisrli.  tin-k  in  for  tVeitrht  h  hiad  of  tar  for  liim, 
and  a  Mr.  Fi^i;ures  ;  and  hud  never  arrounted  for  it ;  and 
th  it  Redding,  as  ■>\»npr-,  ciiiKht  to  hi-  liable  Thean«\»er 
(27T)  d'Miiid  ih  't  Sa-fwion  was  ajipoiit'd  master  for  any  other 
or  fu'thir  (iiu pii,>e.  than  'hat  of  n"a\ij2;atinj!;  the  vessel 
from  Newbciti  to  Miirfi  ee>b'iroofi;h.  and  back,  and  if  he 
had  taken  in  a  load  niion  f'lei.irht  at  MiirfreeMboroii(»l>,  he 
did  it  without  any  anihority  or  permission  from  him. 

Per  airiam — A  master  has  a  right  tn  make  snob  ron- 
traris,  and  n'-ii;>)l>  is  the  jx-rsori  who  does  adnally  make 
them— the  owners  rannot  be  in  rverv  part  where  the 
ship  jjoes  to  make  !bem.  The  vi-r.'.  makioj?  a  man  nias- 
tei-,  and  giving  him  the  mmniand  of  the  ship,  is  a  giving 
him  power  to  fake  a  load  for  freight  in  a  foreign  port, 
01  in  a  port  at  a  distance  from  tiie  place  of  the  owner's 
I  rci^idcnce.  His  appeating  as  master,  is  enough  for  any 
man  to  contiact  with  him  upon  the  cr.'dit  of  his  employer; 
and  as  it  appears  in  the  present  case  by  the  statement  of 
Bedding  himself,  that  the  cargo  was  lost  by  the  attempt 
of  Scrnntnn  to  crnss  the  bar  «itboiit  a  pilot ;  and  as  the 
rule  respondeat  superior,  is  here  app'icabl  with  great 
proprieiy,  iliercfore  let  the  injunction  bedissolvedasto  all 
but  the  valne  of  the  load  of  tar  ;  and  as  to  that,  let  it  be 
Continued  until  the  hearing.  Books  cited — Moll  b.  'i,  c, 
1,  s.  5  and  6.  Moll.  b.  2,  c.  2.  s  14.  1  Term  Hep.  75,78. 
Lex.  Merca.  95.  Sid.4H.  2  Ch.  C.  238. 

NoTi. —  Vide  Howard  v.  Ross,  2  H,iy.  333. 

Den  on  the  demise  of  Lane,  ■».  Rebecca  Davis. 

Tlie  acl  of  1784.  Rev.  c.  'J04,  s.  5,  will  h»r  a  icmainder  dependant  up 
OK  .'H  est:i'e  tall,  in  pussebsiun  ui  tenant  in  tail,  at  the  time  of  pas- 
sing the  act. 

Ejectment.  Upnn  the  trial  of  this  cause  at  the  last 
term,  the  jmy  (.und  a  verdi(  t  subject  to  this  question  of 
law.  wh.the  he  r.c  of  1784.  r.  22.  s.  5,  for  docking  en- 
tails, cuuld  bur  a  rtmuiuUurdepeaUaut  upuu  au  estate  tai^ 


Haywood's  reports.  320 

in  possession  of  tenant  in  lail  at  tlie  time  of  passinj^  the  •^P''  ''^^^• 
art.  IF  it  CMnld.  tli-^y  fmind  for  the  Dcfi^iiilaii'  ;  il  it  did '~"^'^''"^' 
not,  tlien  the  vt-rdict  to  be  eiiti'i-rd  f  n-  tlh'  Pliiintif!'. 

At  this  tensi,  it  was  artjiied  by  Mr.  Hamilton,  tliat  the 
Li'gislatiire  of  Noi'ih-Cat'>dina  li.id  no  no  ver  'i>  pn'^s  any 
law  havun;  a  leiiiispiciive  view.  'T\\<-  Bill  of  Ris  ;ts, 
whirli  is  a  navt  ufoni  C-i'istitiition.  .sec.  24. 1'xp  •s>lj  iie- 
ga'ivc*  iln-  pow^T  of  pissii;;;  ex  post  facto  la-^s.  Tlic  act 
in  q«i"<tioii,  not  oily  fmliids  the  mikini^  estates  tail  iffer 
th'-  passiiij^  the  act,  but  also  ait;  inpts  to  l)ar'  and  dn  away- 
all  sue!)  entails  in  ivniaindei  as  ixistcil,  and  iT-kI  bi  i-ii  le- 
gally civated  before  tlie  prtssin^j  uf  it.  Tin-  43  1  article 
of  (lie  Constitution,  enalile.s  Ibe  fiiinrr  Lef;i''l'>'i"'''  tn  re- 
gulate entails,  in  such  mannrf  as  t"  previ-iif  piM-peiiiitics. 
It  gives  ihein  no  |»o«er  to  drsirny  lights  tli;it  iiad  been 
acquired  leg.ill\.  by  iiie-i's  of  entails  pior  bt  that  time. 
It  Was  not  Only  ig.iitist  reason  to  give  retrosriective  ope- 
ration to  acts  of  tlie  Legisl  ittii'e,  but  llie  (oinnion  law  is  (278) 
cx[)ie-sly  against  it.  19  Vin  M.  4  Ba.  Jib.  637.  2 
Mo.  31' i.  2  Slwtv.  17.  L.  Ray.  1352.  5  Buc.  .56.407. 
4  Burr.  2161.  19  Vin.  -44.  10  Uep.  55.  Standon  v. 
Morgan,  in  Plow,  Com.     1  ^\ilk.  is^8. 

Curia  advisarc — And  a  few  days  afterwards  gavejudg- 
meiit  for  llic  Defendant. 

HILLSBOROUGH,  Al'RlL  TERM,  179ti. 
Lewis  V.  Hynes. 

Old  Lc7vis  devised  negroes  lo  his  wife  for  life,  and  after 
Iter  death,  lo  hiv  cl'ildien  equally.  One  of  tlicdaugliters 
tnarried  Leivis.  who  died  iri  the  lifetime  of  bis  wifi'.  and 
of  her  niotlier,  tlie  widow  of  the  first  Lewis;  then  the 
moiliei'  died,  and  the  wid'iw  of  tlie  Litter  Lewis  iiiariied 
Hijui'S.  Tlie  question  was,  who  was  entitled  to  tbese 
negroes,  thi;  executors  of  tbe  latter  Lewis  or  Utjnes,  the 
secotnl  husband. 

Fer  cxkriam — Willums  and  M.4cay.  it  was  futaudi- 
vij  decided  in  'avor  nf  he  execuiors  i>{  Lewis  upon  ar- 
gunient.  (^mere — The  .lUthorities  iipo  i  which  this  de- 
cision isgrootued,  Fea rue  440.  9  Mo.  101.  2  P.  Wil. 
6f)8 — only  prove  that  llie  fiiis'iaiifl  ma.v  disnose.  tor  ralu- 


821  HAY  wood's  pEPonrs. 

Apr.  (796.  able  ronsideratinri.  arnl  ihat  equity  will  protect  such  as- 
^■^■""^^  si.j,'t)rno'.t.  \  P.  If'U.  366.  5  P.  ffil.  4U.  Fear ne  446, 
447.  Co.  Litl.  46  6.  1(»  Help.  ^\  a.  1  Salk.  33'i— will 
hatu!  of  thrill  ■^iipiKiit  this  (.'erisiim  ;  neither  tl'ies  H.  Bl, 
Rep.  53a,  fop  tlvKigh  a  vested  i:iti'ri'st  in  iTinaiuder.  was 
there  lield  to  xesi  in  t'le  liiisltniid.  thtt  was  the  rase  of  a 
cliaitel  peal  ;  aiitl  2  .3tk.  1'24,  and  the  aiitliorilies  ciied 
in  fVhitbie  v.  Fraz,ier.  iiiuve  tiiat  vested  intei-ests  in 
the  wife,  Milt  I'ediiced  in  o  pnss^'^si  iri,  do  not  gn  t>i  the 
hti^hciiid  us  hiisli,tii(l,  lint  as  next  -it'  kiii  to  the  wite  where 
he  snpvives  hep — «  lier -as  it  they  went  to  liirn  as  husband, 
because  vesii'd  intepesis  in  thewil'e,  thepe  would  be  no  oc- 
casion to  claim  iheiii,  nop  indeed  rotiM  he  claim  then)  as 
atliiiiiiistpatiip  lit"  I  he  wife — these  iii-sfpoes  wepc  hut  ehoses 
ill  u>  lion  of  tiie  wile  of  ttie  lattcp  Lewis,  whicli  the  fipst 
hush.tiul  had  nevep  reduced  into  p.issession  :  and  as  ^he 
ill  fact  had  not  become  eiitiiled  to  ilie  possrHsion  till  after 
the  di-af(i  of  the  inothep,  which  was  sniisequent  t<i  thai  of 
hei  husband,  the  action  in  hep  Pi.y;lit,  coiiimenced  only 
from  Hie  ileatli  of  the  inothep;  so  that  dui'iiii;^  the  life  of 
till' tirst  liushaiid,  h<-  could  not  even  sue  op  demand  the  ne- 
groes ill  light  of  his  wife  ;  and  it  seems  ilillieult  to  ima- 
gine how  the  exeintois  could  acrjui  e  hese  li^jhts.  which 
the  pepsoii  tiiey  lepiesent  had  not.     Ideo  qu(Cre  dehoc. 

Note. — It  will  he  seen  tliat  the  Reporur  .Iniibls  iif  the  decis  t-n  in 
tliis  tM-;e,  ami  it  se^ms,  (rum  the  c:eie  of  McCallop's  Ex'rs  V.  B'vunt 
ii  Wife,  Van.  Rep  9'),  thai  his  opitiion  wms  ■  onvct.  I..  Sura/i  A'eat's 
Adm'r  V  Haddock,  hUo,  the  .lu  Ige  ^TATLOll)  siys  it  is  pt-rfecl-  set- 
tled tuHi  thi-  ii  sband  is  not  c'ltiil  d  to  frc  remaiiult-r  oCa  ch  >tiel  'le- 
lollgMl^'  to  tlu-  witV  »t  the  time  of  I  lie  inter  n  rri  .t^e  This  esse  im  re- 
poi'ed  in  IHay.  183,  :iiid  it  seems  thai  Haivtood  had  then  chan  .ed 
ills  lormer  cpinion  ai..l  Bivmed  di8|n>sed  tu  .  is  il.r  I'^al  when  a  wife 
h.is  a  vesled  i-emainder,  n  b.  comes  he  |jri>p  it\  ot  the  husband  by 
the  niarriage,  although  ii  ma>  nit  v-st  in  possession  diiriii(r  ihe  life  of 
the  witr.  It  is  well  settled  tliat  it  Glioses  in  action  bel  nj^ing  to  ilic 
wife  are  not  reduced  into  posse^sillt)  during  her  life  b\  Uu  husband, 
he  I!,  entitled  to  administer  Hum.  and  if  hi-  dies  heiorc  admiiiis.iHUon 
taken  out,  his  lepresentitives  will  be  benefici.illy  in'erested,  'hough 
it  seems  he  wife's  next  ot  kin  can  claim  the  idmii'isti'alion.  From 
Con  Iiep.75,  it  appears  that  Vie  a.lmii.istrror  o\  Vaniil  Utal.  who 
WiiS  the  husband  oi Sarah  J^'eal,  (.meniioned  i'l  the  ca>e  ai>ov.  fr  m  2 
Hay. J  ind  uho  survived  in  r,  i-iiU(;hi  an  acMon  against  UaiUtotk  for 
till  same  piopeitv,  but  die  court  held  m  accord,  iice  wiili  iVIdtbu  .\ni 
Fruxier,  ante  2r5,  ihd  the  wile's  reprenentaiive  must  brinj;  'hi-  .i>.ti->n. 
bu'  ti;at  ne  would  hold  as  trustee  for  the  husband's  re()irs  ntative. — 
Th  case  from  2  /fay.sliows  IhHtS'ich  m  icinn  w  s  bioujjhta  d  areco- 
vei  h;.  .  th  1' ijn.'  But  il  Hatwdod's  litter  o.n'rnii)  be  cnrret  ,  :irid 
it  s  .  I  la  111.  ..rj  sti.iiiijij  .supp  .rted  )  Bob'-rls  v.  Pnlgrtan.  1  H. 
Itlatk.  Rrjt.  535,  ttie  cage  in  the  Uourt  of  Conference,   and  fVhilbit'* 


Haywood's  ueports..  322 

Jidm'rs.  V.  Frazier,  ought  to  liave  been  decided  differently  u^jon   the  Apr.  1796. 
gr-.iHifl  Vt»t  1 1.-  wifp's  interest  was  not  a  chose  in  action,  but  a  vested  v^-y-^,^ 
int  re^'.     Slaves  hired  out  at  the  lime  of  marriage  are  chost-s  in  pos- 
session nod  vest  in  the  liusband  though  he  mav   'liir   her>re   the   time 
ex.'ires  for  w!nch   th  'y    were    hired.     McLean's   Adin'r.   v.   TaylarU 
Tj^r.  1  Dev.  Rep.  310.     Frazier' s  Ec'r.  v.  Allioon  W  Wife,  ibid.  456. 


HALIFAX,  APRIL  TERM,  1796. 

Minge  V.  Gilmiiiir. 

Tenant  in  tail  sells  I  md  in  1778.  a-.d  dies  le.iving  a  larger  estate  of 
land  t'l  his  son,  the  present  PaiiilifF  :  lie  is  bound  by  the  w;irr .  .ty 
of  his  ancestor  and  assess  de-ci  ndeil.  He  is  also  bound  by  the  ex- 
press Words  of  the  aci  ot  1784,  Rev.  c.  204,  s.  5. 

Old  Minge  held  this  land  in  tail ;  in  1778,  he  sold  to 
tUlmour — ihfM  died,  ieavins  Kinds,  of  fitrlu  or  i«*n  thou- 
saiiil  pounds  value,  to  hi.s  son,  the  present  Plaintiff,  who 
is  the  lieir  in  tail. 

Per  cMriam — .\ftef  much  argument  at  the  bar,  he  is 
barred  b.v  the  wai  rainy  ol' his  iiinestif,  and  the  assets 
descended  to  him,  being  of  as  nun  ti  and  in(!e<'d  g;r«-ater 
value  than  the  lands  in  tiil.  Serondly,  he  is  baned  by 
the  express  words  ot  1784.  c.  22,  s.  5.  that  declares  all 
sales  i.nd  con»c\ances  made  bonajide,  and  for  valuiibic 
Cinsideration,  since  the  first  day  ol' J.inuary,  in  tiieyear 
1777.  by  any  tiiiant  in  tail,  in  actual  posseMsimi  of  any 
real  estate,  where  such  estate  haih  been  conveyed  in  fee 
siiiijile,  shall  be  tjood  and  effectual  in  law  lo  bar  any  te- 
nant or  lenanis  in  tail,  and  letianrs  in  remainder,  of  and 
from  all  claim  and  claims,  action  and  actions,  and  i  i;;ht 
of  entry  whatsoever,  of,  in  and  to  si'Ch  entailed  estate, 
against  any  purchaser,  his  heirs,  and  assigns,  novv  in  ac- 
tual pi)Sse.>*sion  of  such  estate,  in  the  same  manner  as  if 
such  tetiant  in  tail  h;id  possessed  the  name,  in  fee.  Hut 
as  10  the  warranty,  the  Plaintiff's,  counsel  contend. d, 
that  wai'ranty  and  assets  cannot  bar  the  estate  iail,  be- 
cause tha'  had  not  been  lurried  to  a  right  before  or  at  the 
time  when  warranty  descended.  He  cited  Co.  Litt.  383  6. 
There  was  a  verdict  and  juiiginent  for  titc  UeleiidHiit. 

SoTt— Vide  Welts  y.Ntwbold,  Conf.  Re}..  27.i. 

41 


(arg) 


328  Haywood's  reports 

Apr.  1796.  Bunii  v.  M-ioie's  Executors, 

This  rase,  witirh  ha<l  bi-eti  reserved  fcir  the  considera- 
tii>ii  (>f  t'lc  ciiurt  for  three  or  four  years  Jast  past,  now 
Cauie  On  to  be  decided.  Tlie  court  said  it  was  no  longer 
necpisary  to  keep  thi-  cause  waitinis;  for  thi-  o|)iiiiciii  of 
th»*  riiuri,»as  it  had  already  been  considered  by  thi-  Jud- 
ges and  fliey  lind  proceeded  in  consecjuence  of  that  'on- 
sideratjxn,  to  diifcf  in  sewial  Cases  whirh  occurred 
witiiiii  tlie  present  cireuit,  how  interest  should  be  c.ilcu- 
laie  ) — that  on  the  Western  circuit  last  spring,  Ji.dge 
'Macat;  had  loncurrcd  in  civii.e;  such  dinctions,  oi  h^d 
give  .  li.ein  himselt.  [  Geit,  Davie,  at  the  bar.  said  Judge 
MAt«L\  had  told  liini  his  i  pinion  was  as  the  directions 
had  lit-en  sjiven  this  circuit.] 

Per  curiam — The  i'lterest  must  he  calculated  by  the 
follow  itig  riih — it  must  he  ca'lculated  upon  the  priiK-lpal, 
from  :heiiiueii  conimeored  tothe  day  of  the  first  paynunt; 
if  I  In-  pawnent  was  equal  and  no  more  than  equal,  to  the 
interest  then  due,  it  must  oxtii'giiish  tlie  interest;  if  it 
(280)  exceeded  the  inieiesf,  flie  halaiir'e,  after  extinguishing  the 
iiiteiesi,  must  be  deiluclcd  from  th'  principal  ;  if  the  pay- 
ment was  less  than  'he  iiiteiesi,  tiien  the  balance  of  in- 
terest must  remain  until  the  next  payment.  Interest  must 
then  be  c;ilc(ilated  upon  the  principal  remaining,  to  tht 
timi  f  he  mxl  pHyjoent,  which  next  payment  must  be 
applied  in  the  fii-si  pl;tre  to  the  whole  of  the  interest  then 
due  ;  and  so  toiies  qnnties — and  in  the  jnesenf  case,  let 
<he  interest  he  c^ihubieil  by  tiiis  fuIc.  And  the  FlaintiCT 
had  jod^meii;.  Vide  4  Term,  613. 

KoTf.  — Vi'le  .inonimous,  2  //ay.  17.      North  &  Prescnit  v.  AJallelt, 
{bid.  151.     Janet's  Minr.  v.  Mutter's  Ex'r.    Canf.  Hep.  513. 

Dawsey  v.  Da\is. 

Motion  to  ilismiss  a  cause  by  ilii-  Plainliffin  ^certiorari,  who  had  been 
Uef  ndanl  in  the  court  bclnw,  upou  the  fjround  n.at  the  I'hiimiff 
in  'he  suit  iielow  lia.t  no!  jjiven  security  in  this  court  for  c>sts,  in 
pur^u.mce  of  a  notice  servtd  upon  liiin  lOr  thut  purpose:  I'er  cu- 
riam.\i'\he  suit  s  iKiw  di.>4niiss<-(l,  we  must  order  the  court  below  to 
pro' >  id  to  judgment.  Where  a  cause  is  removed  by  cirtiorari 
grantid  by  .  Judge  out  of  coiiit,  it  mu»t  lie  pl.ced  upon  the  .rKU. 
mt.  t  locket,  an  i  Def' ndjnt's  uffihivits  will  be  received  to  ~hoW 
th  iinproprieiv  of  gruniiig:!  new  triiil.  If  the  cfr/ioran  l)e  obi  ,iiied 
in  ciiin  upon  a  rule  m.ide  u,<on  the  ot'ier  party  Vi  >>\u  y,  cause,  the 
case  w  lien  lemoved,  shall  be  put  upon  the  trial  docket  without  fur- 
ther aipiiment. 

S'aied  ID  tlie  court  to  he  a  certiorari  to  remove  a  c;msp 
from  an  infcrtur  jurisdiction,  and  that  a  rnle  had  been 


Haywood's  veports.  324 

in!\«lfl  on  tl)p  P!ai  iff  iti  tho  raiisi'  tnl.iw.  to  ^ivp'sprnrity  ^P'"  '^^^• 
ill  ;!ii^  cou -t  for  cusi-;  oilici-wise  'his  <•  nisi-  lo  b"-  di-i  -^~-^"^^ 
mi-^seil.  it  was  .ilso  stated,  that  this  mciro  li^id  been 
se''»ed  (111  liiiti.  and  lliat  be  bad  iidt  jjivcii  'he  stTui-ity 
reqiiii'fd  ;  wnerpi^pon  t'le.  coiiiisel  !(>!•  Diivis.  il|i»  O'TfU- 
daiit  below  and  I'laintiff  bece,  in  hi-  certiorari,  in'n,'d 
that  !iie  cast'  sboiild  be  di-ini<sed 

Per  curiam — fC  t!ie  cause  be  now  disiiiis.s''d  fr^nn  this 
cnufi,  a  procedendo  must  issue  tit  enfocce  itie  ex. cntioii  i»f 
the j(Hl!!;iiieiil  below;  because  the  nbtainin,^  a  certiorari 
■was  flip  the  pur|i(ise  of  having  it  determined  b\  Mie  (  )iirt 
here,  whether  it  was  proper  to  grant  a  new  trial,  a  .'liibe 
jiidicmenl  below  remaiiis  in  force  until  an  argumeiit  ()e 
had  berc,&th''  new  trial  granted;  and  if  the  cause  slionhl  i)e 
dismissed  before  the  new  trial  is  granted,  tlie  obstacle  Ift 
the  execution  of  judgment  being  removed,  it  remains 
to  be  executed  :  and  ilie  court  here  ougiit  to  certif.  ^he 
court  below  of  this  proceeding,  wiiich  is  done  by  a  pro- 
cedendo. The  counsel  for  the  Defendant  then  movd, 
that  the  cause  sliotild  be  set  aside  for  trial  at  the  next 
tei  m. 

Per  curiam — When  a  cause  is  removed  by  certiorari 
granted  by  a  Judu^e  out  of  court,  it  must  he  pla(ed  on 
the  argument  docket ;  and  the  affidavits  of  the  Defe  id- 
ant  may  be  recei»ed,  to  sbewtiie  impropriety  of  granting 
the  new  trial.  The  court  tiierifor  •  will  not  or<ier  a  new 
trial,  until  the  affidavits  on  both  sides  be  receixed.  The 
affidavits  were  then  produced  <>n  liie  part  of  the  F'.iiiitifif 
in  the  certiorari — the  Defendant  had  none  :  but  these  be- 
ing not  sufficient  to  grant  a  new  trial  upon,  tiie  court 
or<lcred  ihe  cause  to  vtaiid  o\er  for  other  affidavits, 
which  it  was  said  could  lie  procured. 

It  was  further  laid  <hiwii  b>  the  court  in  this  case  as  (^sV  i 
the  lule  of  practice,  that  if  tip  cerHornri  was  obtained  in 
this  court  U[ion  a  rule  made,  on  the  otiier  party  to  shew 
cause,  atid  upon  argument  bad  upon  that  rule,  that  then 
the  cause  when  removed,  should  be  placed  inimi'diately 
on  the  docket  of  causes  lor  trial,  wiijiout  an_>  further  ur- 
gunieiit  to  be  had  ;  but  if  obt  lined  bilore  a  Jiniije  out  of 
court,  then  it  w  .«  sohji  it  !i.  t'lc  n\]r  :iho\i     iiieiitiulied. 

KoTE. —  ViJe  JIntnvmous,  post  367.     Reardon  v.  Qnv,  2  Hay.  245, 


320.  Haywood's  reports. 

/il>r.i796.  State    .  Evans. 

Where  an  outfigeous  act,  hs  b  maim,  isprovpd,thel»w  prc'umesthat 
ii  was  (lone  with  that  dispo'^ition  o(  mii^d,  which  the  law  lequir  bIo 
'  Constitutf  guilt,  until  the  contiaiy  is  shewn. 

Indictment  for  assaiiltine:  "i\v  Joseph  Wright  JVichoU 
son;  and  for  that  tlie  saiil  Evam,  ii  put  pose,  uiilawi'nlly 
dul  bite  off  the  rijjht  ni  foiefinsiT  of  tlir  li'^ht  hand  of 
bim,  the  said  Joseph  ff  right  J^icholson,  with  intent  in  so 
doing  the  said  Joseph  l-f'right  J^icholson  to  maim  and  dis- 
fi(2;ufe,  a.fjaiiisr  the  act,  &<.  The  ex  jdenre  was,  that  JVi- 
c/ioison  applied  to  him  at  Nash  Coort-Hoiise,  about  the 
middle  of  the  afternoon,  to  borrow  some  money  ;  whifh 
dis|)lc'ased  Evans,  who  said,  as  he  was  pooi',  JSTicholson 
inti  ndetl  to  iti^^ult  him.  On  the  same  evening  after  dark, 
two  men,  Willinvis  and  Viverett,  were  |)laying  at  ranis, 
and  some  dispute  arose  between  them.  J^icholson  jo- 
cosely said  to  Williains.  \\hy  don't  yon  whiji  him  ;  who 
replied  jocosely  alsn,  that  he  W"as  afraid  to  attem|>t  it — 
JVicholson,  in  tlie  same  strain,  offered  t()  beta  dollar  that 
he  riiuld  flot;  Viverett ;  whereupon,  inimediaiely,  Evuns 
stepped  foiward,  sayinj;,  he  would  accept  the  offer,  pulled 
a  d'.tllar  out  of  hi^  pocket,  and  was  handiiijs;  it  (o  one 
Wo'.dward  as  a  stakeholder.  Nicholson  snatched  the 
dollar,  and  put  it  in  his  jiockel-  Evans  demanded  it— 
J\'icholson,  continuing  the  joke,  said  I'e  had  no  money  of 
hi>, — Evans  still  deniainled  the  money,  and  not  having  it 
delivered,  proceeded  to  say,  you  act  like  a  scoundiel.— ■ 
^icholsiiTi  replied,  you  can't  make  me  so  Evans  an- 
SWi  red  but  1  can  flott  jon,  and  came  up  to  JVfc/ioIsoti  in 
an  angry  manner.  J\richolson  said,  i  will  not  fight  you 
tnysell,  but  I  have  a  ntgro  fellow  shall  fight  you.  This 
exHsperaied  Evans  to  a  gieai  degree.  He  came  up  se- 
Teral  times  offerunr  to  stiike  .^'ichoison  continuinj;; 
each  time  to  say  he  would  lake  the  law  <>f  hini.  At  length 
Evuns  stepped  off  a  little  way.  pnllul  off  his  clothes,  and 
came  up  again  ;  upon  which  J)/'ich4}lsnn  took  hold  of  his 
arm  to  turn  him  <>ff,  und  when  lie  \»as  turned,  struck  him: 
upi>n  vkliich  the  hlovv  was  returned,  a  fight  ensued,  and 
inimediaiely  Evans  bit  off  the  finger,  as  stated  in  the  in- 
dictment. 

Per  curiam — Whenever  an  act  of  an  outrageous  kind 
iB  I  miiniiieil,  and  in  order  to  its  beii'g  punislialile,  the 
law  requires  a  certain  disposition  of  mind  to  accompany 


C282) 


Haywood's  reports.  3^.6 

it.  The  art  being  mice  proved  to  be  nimmifted.  flielaw  ^P""  i'-6- 
will  piesiime  it  dr)np  with  hat  «liBpoMifi<iri,  till  ilit  Difeii-  ■^^'"^^ 
daiit  shews  the  contrary — as  in  the  ciso  oC  killiiit;,  ii  it 
being  pruveii,  the  law  will  piestitne  it  was  done  with 
malice  prepense,  till  the  cnntraty  he  shewn  by  the  evi- 
dence ;  s(>  iiei-e,  thi'  law  rcqniiing  the  act  of  bi'itia;  '  ff 
the  finger  to  be  tloiie  on  purpose.  uiilawCnll},  and  with 
intuit  to  maim,  when  the  act  itself  is  provefi,  the  law 
will  presume  it  was  done  on  purpose,  and  with  inten'  to 
maim,  as  it  actually  was  a  maim,  till  the  c*  idence  sh'W- 
eth  the  contrary — such  as  liiat  ii  was  dune  by  accidfnt, 
or  done  in  such  a  manner  as  was  not  likely  to  be  aficn'ied 
with  tiiat  effrct  ;  or  that  liie  act  done  was  in  iiursnance 
of  Some  office  or  sentence  of  the  law,  as  sliMing  the  iio^e, 
in  the  case  of  a  Clln^i(■tion  and  jndt^mint  of  forjifiy,  by 
the  [iroper  officer  ;  or  that  it  whs  done  lor  the  »if  cessary 
self-defcticf  of  the  party,  against  some  great  bodily  harm 
atteoipted  by  tiie  person  maimt'd,  and  that  th<'re  was.no 
other  means  of  pri'v»»nting  the  inischiff,  or  other  circum- 
stances of  the  like  kind.  No  such  <  ircumstances  of  ex- 
cuse or  justification  have  appeared  on  the  evidence  itt  the 
present  case.  Had  JSrichnhim  made  the  first  assault, 
])eMiaps  it  might  have  justified  ihe  other  in  healing  him, 
but  it  ci'uld  not  justify  a  maim.  JV*?c/i()/so?('s  b(ha\ioup 
in  tiie  present  t  ase  was  surely  verj  imptoper,  bu!  tho 
Del'etidant  lia.s  carried  his  i  hiistisenieot  loo  far.  This  is 
a  practice  that  otight  to  he  discouraged,  and  if  a  sudden 
rencounter  shall  be  dtenied  sufficient  to  excuse  the  party 
inaiiuing,  from  the  penalties  of  this  branch  of  the  hc;,  it 
will  he  of  very  little  avail  ;  for  then  in  every  sudden  af- 
fray, the  one  party  may  bite  off  the  nose,  fingers,  &c.  of 
the  (iijier.  ami  exi  use  hints' if  by  saying  it  was  done  in 
the  heat  of  passion,  upon  a  sudden  altVay.  And  though 
JVicholsun  would  have  in>  i  ight  to  complain,  had  he  re- 
cened  a  gentle  scourging  fiom  the  Defendant;  yet  the 
other  party  being  a  man,  as  the  evidence  is,  of  very  su- 
perior hoilily  powers,  there  cannot  be  the  least  e.\cuse 
for  acting  as  he  has  done. 

The  jury  convicted  Ih;  D'fendant,  and  he  was  fined 
five  pounds,  and  senienceil  to  six  month'?  imprisonment, 
aceoidiiig  to  the  act  of  Assembly-. 

^foTE.-  rj'nte  Staff  v.  fnrln,  wiir.  U'T?. 


■aAVWOODP    IIKPOHBS. 
Slieii'iiil  V.  Davis. 

If  in  an  action  aKS.!:ist  tuo  nefendaiits  fiirn  joint  contract,  one  of  tlieiii 
cann't  be  tuken  ;  aftt-r  ihe  plurie«  wrii,  the  olUer  may  be  proceed- 
ed aguJ:>sl  a'lOiie. 

This  WKs  ail  action  hroiisjlit  against  two  Defendanfs, 
ii|»oii  a  joini  coiiliiici.  Oic  of  tlM-:ii  lived  nut  oCtlic  St,«te 
(283)  and  could  nut  be  taiieti,  l>ut  tin-  pcori'ss  of  tl'p  court  li«d 
b'-i'ii  reguhi'Iv  issued  ns^ains'  liiin.  t'>  thi-  jilnries  wiiich 
had  liec'i  ritiiiT.rd  non  est  inveutns  TIip  PlnitififT  tlii-ii 
pi-oCf(Mled;i.a;aiiist  theollier,  ami  outlined  a  veidirt  aj^rtiust 
liini ;  and  it  was  moved  in  arcest  of  jiidu;nii'iit,  'ha  it  was 
ii'iesular  to  proceed  against  Davis  till  the  ot'ier  Itud  b  en 
taken.  This  motion  h^iviiii;;  lieeu  placed  on  the  ai-guiiieiit 
docket,  came  on  now  lo  be  aigiied. 

Gen.  Davie  argueil  in  stihstance — That  by  llie  law  of 
ILii.^laiid,  where  one  oC  two  Juint  Defendants  conid  not 
be  found,  the  Plaintiff  pi-oceedcd  to  the  outlawrv'  against 
him,  and  iheii  declared  asaiunt  the  Defendant  that  was  in 
coiiet,  ihat  he,  l(V'-!;<itliei'  with  the  other,  look  upon  liimsefT 
and  promised,  &c.  Slc  Stra.  4TS.  2  Jlk.  510.  511. 
And  if  in  a  Court  of  E'|iiity  tlie  |.riii-ess  againsi  the  ab- 
sent Defendant,  was  carried  on  to  secjuestration.  when  it 
ap(ievirs  the  Plaintiff  ha«  done  every  thing  in  his  power, 
by  using  the  utmost  piocpss  the  law  allows  to  compel  the 
appearance  of  ilie  absent  paity,  it  suffers  him  to  proceed 
against  the  other  for  the  whole.  By  parity  of  reason, 
whi-n  in  this  country  the  C"Urt  perceives  the  Pl.iintiff  has 
used  'he  whole  series  of  pi-ocess  th^t  the  law  allows  him 
to  enforce  the  api'earance  of  a  D'feiidant,  it  will,  in  like 
iTianner,  allnw  iijin  to  proceed  for  the  whole  a.;jainst  the 
D'fetidant  who  is  in  court.  Now  h}  tlie  act  of  1777,  C.  2 
5.  2  ",  when  the  Siu'riff  iciiiros  non  est  inventus,  the  Plain- 
tiff iniy  lake  a  judicial  a'tac  hinent.  or  an  alias  or  pluries 
at  his  election  ;  bui  tiie  act  spe-'ks  not  of  any  further  pro- 
cess, nor  indeed  is  there  any  fmther  process  which  can  bo 
used  here — the  liw  of  ontfiwry  is  not  in  force  for  want 
of  the  (uoper  offii  ers  to  conduct  it.  Ii  ap|)c  is  by  5  Com. 
i241 — and  hy  Jacob's  Law  Did.  which  though  not  a  book 
of  authority,  seems  'o  hue  ireafed  of  outlawry  much  at 
large,  and  >>■  i  h  CMi^i't  r.ihle  accuract — tli.it  there  must 
be  Jieluzer,  cxis;nnter,  dlfc.  to  m  ike  out  tho  pr-ncss  ne- 
cessary at  the  different  .sta^eu  of  the  pi'ucecUiiig.     Also 


HAYWOOn's   REPORTS.  328 

titc  net  whicli  puts  in  finiv  siirli  pacts  of  the  Englisli  law'^pr    '96. 
as  swo  iKiw  ill  iisf,  says,  only  sticli   !inrts  of  tlio  staluto  -i»'~>^'>fc-' 
ariil  (-ctiDnioti  la  a  as  were  licf'oi-i'  iiffmrc  &  use  liciv  and  nut 
ini-<iin|Miihlf  with  niii"  f-irni  of  i^ovpfiiinent,  sh;ill  !)fsiill 
in  force.      But  ihi'  proc  edin^f  t  •  outl.iNi^ry  was  in'vcr  in 
fiirce  her'e,  and  theM'fbre  is  ncii  a  p.n  t  '.four  law — and  hy 
the  latli  sccliun  of  the  Bill  ■>!  Rii;ii's,  no  man  i;an  he  out- 
lawed, &C.  but  hv  the  law  of  the  land  ;   but  there  is  no  law 
ill  force  heic  forihat  putpi.sc      If  the  law  ofouilawiy  be 
not  in  force  h<-re  for  any  of  the.se  reasons,   then  tliere  is    (oa^A 
no  otiier  proces'^- thai  a  PlaiiiTifTcan  use,  hut  that  m-tiftoii-     ^ 
e<l  in  tlio  at'i  of  *7T7,  Itrfofe  iiientiDued  ;    and  thi-  Plain- 
tiH  liavini;  picucided  to  ilie  extent  of  hat  prin  ess,  siiould 
be  su/K  r<(l  up.)  I  the  principles  before  stated,  to  proceed 
against  the  oiher. 

It  was  arg'ied  hy  Baker,  e  contra — That  this  was  not 
snrh  a  case,  as  if  it  liapp'  ■(•<!  in  EntjIaMd,  an  uuiLiwry 
Could  havebi'in  pr(niouuced  ojiou — th  it  outlawry  was  tlie 
pnitiut;  eoifra  legem,  perscni.,  who  wet-e  subjici  to  it,  and 
had  taken  the  oalh  in  (h<'  Court  Leet,  5  f^UHi.  Dig.  650, 
but  it  w.is  error  if  pronouncid  against  a  suhject  ti  ano- 
ther goveriinieiit.  and  re».idcut  out  ol  Eui^laud,  or  if  out 
of  the  rc.ilin  iipoo  pwhlic  business — here,  th'-  absent  De- 
feiiilani  wasacitizeu  ofanolhec  ;i^oveftiinenl,  and  ri'sided 
williin  the  liiniis  :hereof,  so  be  could  not  have  been  out- 
lawed ;  and  il  lie  could  noi  have  been  onilawid,  then  ac- 
cordin.;;  'o  the  agnmeut  oii  tlie  oihcf  side,  it  was  not  pos- 
sible to  proceed  jii^iinst  iheoiliei'.  The  reason  why  'iicy 
do  not  ill  Et^jjlaiid  p;  oceeil  a.i^ainst  the  oulaw,  being,  tiiat 
his  pcopi ny  is  fnf.  itcd  to  the  Kiui;;,  So  tlmt  tln-re  is  no- 
thing for  tiie  i'lai>ittir:  but  unfil  tlse  outlawry  takes  place, 
there,  is  a  pos-^ibilitj  of  recovering  something  ag.iiisi  uiin 
as  well  as  against  the  olhei- — and  if  the  absi-nl  Defcf  itant 
is  under  such  i;ir<-uins;ances  tha' Jndgnieni  of  onilawry  in 
England  cOuld  not  he  pronounced  against  him,  I  ippre- 
lieiid  there' can  be  no  proceeding  against  the  other  n  itil 
the  absent  Defendant  be  actually  brought  in — foe  in  Eng- 
land lliey  rie\er  proceed  against  th  •  aiT'  st'd  Difen'l  int, 
till  it  appeals  by  the  outlawry,  there  is  no  iiossibiliiy  of 
inaUiiig  the  other  i  nter  into  the  dele.tice  with  bim.  In- 
deed our  act  o(  Assembly  seem*  to  cinleinplaie  no  other 
end  ij'process  than  ttie  'ki-ig  ih  Deiendaut,  for  it  di- 
ri .  ■■<  tne  alias  and  plurics  In  go  till  thefiarlv  bearfesie'I. 
Sec  1777.  r.  3,  s.  78.  ' 


329  havwood's  hepouts. 

A|).-.1796,       Ef  per  curiam— The  juilirial  iiroceedin^s  of  this  coun- 
\,^-y>te»  tr>  litvp  never  rtTogtiizi-d  ilie  law  of  mitlawry   previous 
to  (III-  Revdiulioii,  and  Hifrerore  that  part  of  the   lavv    of 
K'ij^IhikI  caiuiiit  b'-  roiisidcred  to  he  in  f  irre  here  at  tliis 
tla.>.     The  words  of  the  act  are.  that  ail  sucii  statutes, 
and  surh  parts  of  Hip  coiniiioii  law  as   were  here  bi'fore 
iu  I'orce  and  u.se  within  this  territury,  Jcr.  and  so  much 
of  tiie  said  sialuie.s,  ntminoii  law,  &r.  as  are  not  destruc- 
tive of,  rrpui^nant  to.  or  iiicoiisislent  with  the  freedom 
and  in(k'|ieiidi'nre  of  tliis  State,  and  the  form  of  govern- 
ment ilieri'in  establisiied,  and  wiiicli  have  not  been  other- 
wisf  provided  lor,  &c.  are  hereby  dorlared  to  be  in    full 
foiCi' — but  this  part  of  the  coinmon    law   havint^  never 
(285)     been  used  here  before  the  Revolution,  cannot  wilhiii    the 
terms  of  this  act,  be  now  receiteJ  here  as  law — ihoii.:;li 
there  is  nothing  in  tlie  ronstiiution  to  repel  sui  h  a  law, 
should  the  Lej^islatiire  think  proper  to  establisit  it — on 
the  contrary,   the  coiisiiiuiii)n  aii^nits  ihe   possibility  of 
outlawing   a  citizen.       I2ili  sec.  of   the   Derlaration   of 
Rights — No  man  shall  be  outlawed  hut  hy  ihe  law  of  ihe 
land.     Tins  implies  he  may   be   (lutiawed   survato  juris 
online.     Bui  allhougli  a  man  may  not  be  outlawed  he-e, 
yet  thei-e  is  the  same  reason  in  certaim  circumstances 
for    all.iwiiig  the    Flainfiff  to    proceed    against    one  of 
two  Di  fendants  in  court,  whei-e  the  other  cannot  be  taken, 
as  if  it  were  the  prac'ire  to  outlaw  the  absent  Oefenilant. 
Tlie  true  reason  why  in  Englani!  after  nutlawry  the  law 
allows  a  proreeding  against  th    Detendant  who  is  taken, 
is  not  because  ilie  ])iiipi'rtv  of  i\u-  orh*"!'  is   forfeited,  but 
be*  a  use   lex  nemini  coget  ad  imp'i$sibilia      It  n-quiics 
both  to  be  sued  if  possible,  liial  l)oili  may  bear  tlieir  e- 
qiial  burthen  of  tin- contract  ih-y  havejointly  undertaken 
toperfo.m.      Ii  is  for  the  beiiefi'   of  the   Defendant    who 
is  in  court  and  amenable,   that   this  is  reijuired.     ^^  hen 
it  appears  III  the  Court,  however,  to  be  impossible  for  tlio 
Plaii.tilf  to  bring  both  into  court,  the  law  will  no  longer 
require  this  of  him  ;  for  that  would  b>-  to  require  an  im- 
posihiliiy,  and  to  defeat  Hie  Plaintiffof  his  jii^t  demand. 
Alihiiugli  from  tiie  nature  of  the  coinrai  teach  Defe  :"iaiit 
was  answerable  in  snlidnmf  tliis  would  be  unjust  ;  and 
the  law  does  not  r<i|uire  it  after  it  hath  become  evident 
th.ii  Ihi' I'l.iintitf  cannot  arrest    both,     in   England   this 
impossiliility  is  I  t  id' IK  '<l   >);.    the  outliW'y.    toe  utmost 
pruceHH  that  the  luw  knews,  anit  the  PUiniilf  hatk  in  hi^ 


Haywood's  reports.  -330 

J  tower  to  use.  So  in  this  conntty  the  law  will  require  Apr.  1796. 
the  Pliiiiitiff  to  proceed  ajjainst  botli  upon  a. join"  iiniler-  '«.*'^'^>-' 
taivifi.j;,  that  both  may  be  coiiiribiUory  to  the  peiform- 
anC'of  this  joint  roiitiact,  until  the  FlaintifT  hath  pro- 
cured legal  evidenre  that  it  is  out  of  Ills  power  to  eolorce 
the  attendance  of  some  ()neot'|.hi  ni  or  iino'e  :  and  bv  an- 
aloa;y,  this  siiotild  seem  to  be  effected  here  by  the  last  pro- 
cess tiiat  the  law  has  provided.  tUe p furies,  r)r  the  attai'h- 
ment,  kc.  Though  this  is  a  point  not  ex[»re8sly  decided 
in  this  State  since  tht-  Revolution,  yei  thf  constant  opin- 
ion and  practice  of  the  bar  hath  been.  &e.  and  it  seems 
exiremcly  reasonable,  otherwise  one  D"fendant  by  with- 
drawing himself,  inigiit  forever  prevent  a  recovery  against 
his  co-<lefendMnl.  Tliis  wnuld  be  a  serious  mischief  in- 
deed. Many  Delendants  would  avail  themselves  of  it 
immediately.  Our  vicinity  to  other  States,  would  make  (886) 
it  the  easiest  matter  in  the  \v<)rld  to  be  practised  ;  and  a 
decision  of  that  kind  would  occasion  tin-  Idss  of  many  Just 
debts  and  demands.  If  it  were  necessary  in  urder  to  sup- 
port this  opinion  to  shew  tlmi  tiiis  is  such  a  case  as  an  out- 
lawry woul'i  lie  in  siij)|)osing  itto  lMvcliap|)cned  in  Eng- 
land, it  is  sutticient  to  say,  that  it  is  totally  immaterial 
whether  the  outlawry  wvuld  bclerroneous  or  not.  fur  tlie 
reasons  mentiimed  liy  tin'  Di'fendani's  counsel,  or  lor  any 
other  reasons,  an  erroneous  outlawry  remains  good  till 
reversed  by  the  party  ;  and  Itefore  he  can  be  admiitedto 
liavc  his  writ  of  erroi-,  he  must  Kp;)rar  and  put  in  bail  to 
tliesuit.  L.  Ray.  349.  2  Sulk.  -t96 — and  then  the  pur- 
))0Hes  of  the  Flaintiff's  pi-oceeding  to  imtlavvry  are  satis- 
lied.  But  there  is  no  necessity  to  resort  to  this  conside- 
ration— the  Plaintiff  here,  has  used  tlie  utmost  process 
tiiat  the  law  allows  him,  he  lias  therefore  done  every  thing 
in  bis  power  which  the  law  required  of  him,  and  he  must 
now  be  suffered  to  proceed  against  tiie  other  Defendant ; 
ottierwisc,  he  W4)uld  be  without  any  remetly.  'I'iiis  would 
be  to  carry  the  rule  in  favor  of  the  Defendant  much  fur- 
ther than  tlie  reason  of  the  role  will  allow  of.  It  never 
meant  to  deprive  the  Plaintiff  of  his  debt  when  both  could  - 
not  be  taken,  but  only  to  prxvent  him  from  pi-oceeding 
against  one  only  when  both  might  be  taken.  According- 
ly, thi-rc  was  judgineiii  for  the  Plaintiff. 

NuTE — Vide.  Anmiymmis,  2  Hay.  70.  'Vh>ie  one  Defendant  is  ta- 
ken, U'ld  .in  at'mt  and  pluries  wgaiist  tlie  oiliei  Defendant,  returned 
"  n  t  found,"  the  Defemiant  taken,  sliall  be  allowed  to  pi  ad  I"  the 
aci'o.i,  and  th  Pla'nliff  sh.ill  coiiit:  to  issue  its  to  him  P-icf  \.  fkala 
."/  LeMiar/,  '2  Murphfv  190. 


Haywood's  reports. 
Anonyn)ou<i. 

If  a  plaintiff  procures  a  copy  of  his  bill  and  a  suhpana,  and  delivers 
tliem  to  ih«^  Sheriff,  in  time  to  be  served  on  the  Defendant  ten  days 
before  tlie  term,  :ind  the  SherifJ'  neglects  to  m  .ke  the  service  until 
ten  days  before  the  next  term  after  thit,  the  PUintifT 's  '>ill  sliall  not 
be  dismissed  by  a  plea  in  abatement  under  the  act  of  1782,  Rev.  c. 

-  177,  sec.  S. 

The  Plaintiff  had  filed  his  bill  in  Equity,  against  the 
Defi-iidani,  in  tlie  office  (if  the  Clerk  and  Master,  and  liail 
pi'>(iir'cd  a  ropy  of  thf  bill,  and  .1  subpoena  wliicb  lie  had 
dvli»'-i»*d  to  the  Sheriff  ill  time  to  be  executed;  but  the 
Sli'  riff  did  not  execute  the  procfss  at  ail  before  the  next 
term.  At  which  teim,  thr  Delendant  appeared  and  plead* 
ed  in  abatement,  that  the  process  had  not  been  served 
upo:;  him  ten  days  before  the  term,  at  which  by  the  pro- 
cess he  was  required  to  appear.  To  this  pica  the  Plain- 
tiff '!( niiirred. 

Et  per  curiam,  Haywood  and  Stone,  Justices — The 
clause  of  the  act  upon  which  this  plea  is  grounded,  is  in 
the  act  of  1782,  c.  II,  s.  2.  It  directs  ''Tliat  no  writ 
shall  bf  served  by  the  Shfiiff,  unless  he  has  a  copy  of  the 
bill  iciidy  to  deliver  to  the  Di  fendant ;  and  he  is  hereby 
required  (o  deliver  the.  said  copy  immediately  after  the 
service  of  the  said  writ;  nor  shall  kny  service  be  valid, 
unless  it  be  made  at  least  ten  days  brfore  the  term  at 
which  the  Delendant  is  required  to  appear  ;  and  where 
(287)  ^|,p  sei-vice  is  by  subpcena,  the  Defendant  shall  be  sei  ved 
with  a  ( (ipy  of  the  bill,  at  least  ten  days  before  such  term  : 
in  failure  of  any  of  which  requisitions,  ihc  Defendant  may 
plead  the  matter  in  abatement,  and  the  bill  shall  be  dis- 
missed." The  intent  of  this  clause  is  to  allow  the  De- 
fendant ten  days  time  to  c.nsidir  of  the  defence  propti-  for 
him  to  make — to  employ  the  necessary  counsel,  and  draw 
his  answer,  plea  or  liemurrer.  The  Legislature  sujipo- 
sed  that  all  these  things  could  not  be  dune  in  a  shorter 
time  in  most  cases  ;  and  this  time  they  have  si  cured  to 
him  under  the  penalty  of  a  dismission  of  the  Plaintiff's 
bill,  in  case  of  an  attempt  to  shorten  the  time  allowed  by 
law.  The  mischief  intendi  d  to  be  avoided,  is,  that  of  for- 
cing the  Defendant  to  make  a  defence  before  he  has  lime 
to  pi ipiro  for  it.  These  provisions  are  similar  to  those 
matie  lor  a  similar  purpose  in  the  act  of  1777,  c.  2.  s.  14, 
wlnre  process  at  law,  returnable  to  the  Superior  Court, 
is  directed  to  he  executed  ten  days  before  the  beginning 


Haywood's  reports,  332 

of  the  term  ;  and  if  otherwise  (xeni'ed,  that  it  shall  be  ^P"'  ^''^C. 
adjiidgefl  v.  id  upon  Ihe  \Av<i  of  he  Di^fpiidHnf.  A>id  in  ^-^"•''^^■^ 
sertiori  74  of  the  same  iict,  where  j  ioces«  eetiirni'.lile  to 
the  CouMtj  CdUit.  is  directed  lo  be  executed  -t  lenst  five 
days:  before  the  letiiin  tlierenf;  and  if  exec  uted  at  any 
other  time,  that  it  may  be  abated  on  the  pUa  of  th<'  De- 
fendant. These  several  clauses  b<»ing  all  intended  fur  the 
same  purpose,  it  is  proper  that  the  construciion  pur  upon 
them  slioiild  be  uniform.  Now  it  has  never  been  deemed 
to  be  the  meaninj;  of  the  clauses  in  the  act  of  1777,  that 
process  issued  in  time  to  the  Sheriff,  and  returned  unex- 
ecuted, shoulrl  be  abated  by  tl>e  plea  of  the  Dtfeiidant, 
but  an  alias  issues.  The  process  is  only  abateable  un- 
der the  opi-ratioii  <if  these  claute«,  where  it  hath  been  ex- 
ecuted within  the  times  prescribed  ;  or  in  other  words, 
where  i!  has  been  served  in  less  than  ten  or  five  days  be- 
fore the  commencement  of  the  term.  As  the  inconveni- 
ence arising  from  sliorttiess  of  time,  was  that  only  which 
Was  intended  to  be  avoided  by  the  act  of  1782,  and  is  no 
greater  in  an  Equity  suit  than  in  a  suit  at  law,  there  can 
be  no  reason  why  a  non-execution  of  process  by  the  offi- 
cer in  the  former  case,  siiould  subject  the  Plaintiff  to  a 
dismission  of  his  suit,  any  sooner  than  it  will  subject  Ihe 
Plaintiff  to  an  abatement  of  his  suit  in  the  latter — especi- 
ally as  the  expression  of  the  acts  in  both  cases  is  confi- 
ned to  a  service  of  process  within  liie  ten  days,  and  not 
to  a  non-execution  of  process  before  the  term.  Tlic  words 
of  the  act  of  1782,  are,  "Noi  shall  any  service  be  valid,  un- 
less it  be  made  at  least  ten  days  before  the  term."  I'he  act 
Jiere  speaks  of  service  actually  made,  and  says  it  shall  he 
invalid  if  not  made  a  certain  time  befoie  the  term.  It 
says  nothing  of  the  case  of  a  non-execution  of  process. — 
The  words  of  1777,  s.  14,  are,  "  And  shall  be  executed 
at  least  ten  days"  before  the  beginning  of  such  term. — 
The  words  of  s.  74,  are,  "And  shall  be  executed  at  least 
five  days  before  the  return  thereof" — all  expressive  of  the 
name  thing,  numely,  a  service  within  tiie  time,  or  a  short- 
er time  bi4bie  the  next  term  than  the  art  directs.  Were 
this  plea  allowed,  it  would  establrsh  the  docrine,  that 
whenever  a  Defendant  in  Equity  could  be  apprised  of  a  bill 
filed,  and  process  taken  <mt,  he  might,  by  withdrawing  or 
concealing  liimself  from  the  Sheriff  until  the  arrival  of  the 
term,  cause  a  dismission  of  tiie  Plaintiff's  bill;  though 
were  it  an  action  at  law,  the  con-^eqiience  would  he  c tier- 
wise.    It  would  also  establish  this  other  equally  absurd: 


838  iiaywood's  repouts." 

Apr.  1796.  (Jnctrine,  that  rii  officer  by  neglectin|sf  to  srrvp  an  Equity 
'"^'''^'"**^  |iroc»ss.  iiiiglit  stibjfct  the  Plaintiff  to  a  disinissimi  nl' liis 
suit  ami  costs,  when  llie  sunie  iii'ijIpci  in  prDCc-s  at  liiw, 
Wiiulilproiliici-  IK)  otlter  iiiciiiivpiiietice  to  the  PlaintiflMiaii 
di'lav.  But  sui't-ly  it  could  ne\er  be  the  intent  of  the  act 
of  1782,  to  make  the  Plaintiff'.s  suit  in  Equity  depend  for 
its  continuance  in  court,  eitliei-  upon  ilie  plea'<ui-e  of  tlie 
offiiec,  or  the  honesty  or  the  gcnerosit)  of  the  Defendant, 
neither  coul'l  the  act  menu  to  dismi^'S  the  suit,  unless  for 
some  irrej2;ularit_>  pirjudicial  to  the  Defendant,  whicli  the 
non-exi'cution  of  process  upon  him  is  not ;  for  thai  has 
only  the  effect  of  tcixin.a;  him  lonsjer  lime,  and  is  an  ad- 
vantage to  him.  Moreover,  the  Defendant  is  to  take  ad- 
vantrt|;p  of  the  irrejEfulafity  or  failure  mentioned  in  the 
act,  by  pleading  it  in  abatement,  both  by  the  ait  of  1782, 
and  the  clauses  in  the  act  of  1777  ;  but  the  rule  is  well 
known,  that  a  Defendant  cannoi  plead  until  he  is  called 
intr)  court  for  that  purpose  by  a  service  of  pi-ncess,  unless 
he  appears  volnniarily,  and  the  Plaitiiiff  will  accept  of 
such  appearance.  This  evinces  the  meaninjr  i>f  the  act  to 
be,  iliat  the  plea  in  abatemi  nt  is  to  be  by  a  person  served 
with  process,  and  lor  an  irregular  service  of  process  |  not 
a  pleading  by  a  person  not  served  wiih  process  at  aif, 
and  who  for  that  leason  in  legal  contiinplaiion,  is  not  in 
court.  It  points  ilirectly  to  the  case  of  pi-ocess  actually 
served,  but  within  ten  days  next  before  the  term.  This 
plea  does  not  ilisclose  th>tt  case,  but  ainithrr,  a  total  non- 
cxi'cution  of  proiess,  which  is  to  be  remedied  by  a  conti- 
nuation or  re-issuing  of  prticess,  and  cannot  acconling  to 
the  true  meaning  of  liiis  act  cause  a  dismission  of  the  suit. 
So  the  plea  was  overruled. 

Note. — Tills  case  is  reco(;nizeil  »nd  approved,  in  Worthington  t. 
Colhane,  2  Cnr.  Law  Jiepos.  *8. 

f289)  Moore  Knight  and  Wife,  v.  Theophilus  Thomas. 

Tlie  word  credilors,  in  tbe  act  of  1784,  Jicv.  c-  225,  s.  7,  respecting 
parol  gifts  of  slaves,  means,  js  well  timsc  who  liave  become  credi- 
tors since  the  parol  transfer,  as  those  who  were  such  before. 

Trover.  Thomas,  as  SheriflT,  had  sold  the  negroes  in 
controversy  as  tin-  pr^p^ty  of  one  Pass,  to  satisfy  an 
execution  nf  one  of  Pass's  creditors.  It  turind  out  upon 
evidi-nce.  thai  Pass  had  com  eyed  those  negiDPsby  parol, 
bef.  re  wiin-s-^es.  tti  ilie- wife  of  the  PlaintiflT.  sometime 
before  this  creditor  obtained  judgment,  antl  before  llie 


HAYWOOU's    HKPOUTS.  334 

debt  was  coiiliiicti'il.  It  was  Hrajind  a'  tlie  bar,  a>i(l  ad-^^'y  ^'^^• 
inii*^'-"!  by  (lie  rniiit,  thai  tlu^  Jmlj^rs  lierctdfiuo  liavr  df- *"^'"^''^**' 
cifl.d  ibat  iiiidi'i  ihc  acl  of  1781-.  c.  10,  «.  ",  a  |mioI  cun- 
vc.vaiKC  iif"  iicijrof^  is  j;-  lid  a«  bctwron  Ibe  partii  s  tbcm- 
solvt'S.  as  bct'tiie  llio  making'  of  this  art;  biitwas  \"id  as 
to  cfcdiii'i'*,  as  well  creditors  who  bcraiiie  sticb  afici  tlic 
coii'xeyaiiif  as  tbose  who  were  creditors  at  ilie. time;  for 
llie  iniscliicf  iiitemled  to  be  remedied  by  M'e  act,  \sas, 
that  stibsdjueiit  crrdi'ots  had  bieii  defVaied  of  tbeirdebts 
contracted  ii|»oii  the  credit  of  a  man's  visible  priijierty, 
by  means  of  secret  Rilts  to  children  and  otiieis,  ii'iade 
before  Ilie  debts  coiiiracted  oftrti  limes,  and  when  trie 
party  may  have  been  in  j!;(»od  cireiiiiistances.  'I'lie  mnrt 
now  assented  to  ibis  construct  ion  ;)f  the  act,  and  opinj 
tlii-i  j;ionnd  giiintcil  a  neAV  trial,  the  jury  havin.^  found 
fi)r  (lie  Plaintiiyas  (o  one  ne,2;ro,  who  bad  been  deliveied 
in  ihc  presence  of  witnesses  some  years  before — Pass  tiad 
become  a  debtor  to  (bat  creditor  upon  whose  t-xiMiitioii 
the  iie;;ro  was  solif,  and  even  before  he  becaiDf  involved. 

Note.  —  Vide^noU-  lo  t'amll  v.  Perry,  ante  2. 

WILMIx\GTON,  MAY  TERM,  1796. 
Siieed  V.  Mitchell's  Exccntors. 

ifoiie  or'two  joint  payees,  endoi'ses  all  liis  interesl   lo  the  otiui,  \',Kit 
other  inuy  niuintain  an  action  in  his  own  name  for  the  whole  del)i. 

This  was  an  action  brought  to  recover  money  due  upon 
a  noli- of  liand.  Tlie  note  when  produced,  appe,tred  to 
have  been  given  by  .WzVc/ie/i  to  SiiCffZ and  another,  jointly; 
and  Ibiit  other  had  cndoi'sed  upon  the  note  a  writing, 
jiurporiing  that  he  bad  relinquished  all  his  right  and  in- 
terest in  'he  within  note  to  Sneed, 

mil  for  the  Defendant,  objeciitl,  that  this  indorsement 
should  liot  be  recfived  as  evidence  for  the  piirj)ose  now 
intended,  namely,  that  <d'  shewing  the  sole  interest  and 
right  of  action  to  tie  in  Siieed — Sneed  cantn»t  be  entitled 
as  assignee,  for  bntli  partners  having  one  joint  and  en- 
tire intei'est,  it  will  require  the  joint  concurrence  of  both 
to  transfer  that  inti-re-it  to  anothei' — the  etrh)i'seiiient  of 
one  onlj,  will  no'  ii  aiisfcr  lb  s  jiii.it  and  eniiie  inter,  -it, 
part  of  wl)ic!i  is  in  bis  partner,  to  a  tiiiril  jicrsoii  ;  and 


33S 


HAYWOOD  S  KEPOK'tS. 


^J_f°  if  the  endorsemnnt  of  both  is  iTqiiirotl  in  llie  case  of  » 
fctraiiicer,  it  will  equally  require  the  Piidoi'-iemciit  of  both, 
(2iH))  ^-(,p,.p  tiip  wiiole  iniere'^t  is  iuteriiled  to  be  passeil  to  one 
of  the  pat  fnei'8  as  an  assit,nt'e — for  where  he  sues  as  as- 
sitfiiee,  he  must  set  f<irtli  the.  rustoni  of  merrhants  ;  and 
there  is  no  instanre  of  one  partner  siiing  as  assignee, 
under  ihat  custom,  hy  virtue  of  an  endorsement  math*  by 
the  other — tliou.a,h  ihe  Plaintiff  is  not  named  assignee  in 
the  writ,  he  must  still  state  his  title  to  sue,  and  make  his 
demand  in  the  de(  laiation — How  will  he  do  this  in  the 
piescnt  instance?  Can  he  say  he  is  entitled  hy  this  as- 
signment? This  at  most  only  j)asses  ihe  interest  the  en- 
dorsei'  lialh,  a  j"int  interest  in  the  whole, or  an  undivided 
moipiy  in  the  whole  ;  hut  it  cannot  move  the  interest  the 
Plaintiff  had  prior  to  the  endorsement — that  would  re- 
main the  same  as  befoie.  If  thru  such  tndorsemeni  can 
have  any  eff  ct,  if  must  be  that  of  making  the  Phintifflo 
hold  in  two  distinct  rights,  namely,  tiie  interest  he  had 
originally,  ami  the  ■.ame  quantity  of  interest  by  assign- 
ment ;  and  in  order  to  state  his  case  truly  in  tlie  decla- 
ration, lie.mu'-t  slate,  first,  the  making  of  the  note,  and 
his  right  that  way  :  and  then  the  endorsement  hy  his 
))artner,  and  his  right  that  way.  There  is  not  any  pre- 
ce«lent  ■  f  such  a  declaration — as  therefore  this  action 
cannot  be  suppoited  by  the  Plaintiff,  either  as  assignee 
Hn  cr  tiiis  endorsenn  nt,  nor  yet  as  the  original  payee, 
there  being  another  joint  pay^e  still  alive,  and  who  ought 
to  have  been  jcltied  in  the  action,  1  must  submit  whether 
this  evi<leiice  is  siillicient  to  be  left  with  the  jury. 

Sliide  e  contra — Tliough  it  be  in  general  true,  that  a 
contract  madi-  with  several  persons  jointly,  must  hi  sued 
upon  hy  all  jointly,  Ihat  does  not  hold  univeiSMlly  ;  for 
if  some  of  tliem  are  satisfied,  and  ilieir  demands  extin- 
guishid,  they  'leed  not  be  made  parties.  IFafson's  L. 
Part.  233.  Espin.  11.  The  suit  may  he  supported  by 
oni  of  tin-  partnei's  wiio  hath  no(  been  satisfied  :  and  sup- 
l)osing  this  endorsemenl  to  have  had  no  effect  towards 
transfei'ing  the  interest  of  the  eri<lorscr  to  the  Plaintiff, 
surely  it  may  have  the  I'ffect  of  extinguishing  the  claim 
of  the  endorser,  as  against  the  endorsee — and  as  before 
the  endorsement,  the  I'laintiff  had  an  interest  in  the  whole 
and  in  <  vei y  part  of  this  no  e,  li''  will  not  be  alter  the 
cnd<  >  si-iueiil  in  a  worse  situation  ;  and  being  unsatisfied 
as  to  his  demand,  he  may  accuidiug  to  these  authorities, 


iiaywood's  reports.  336 

support  an  action  for  it.  Had  the  endorser  died,  the  ^^y  l''9S- 
Plaintiff  misht  have  sncd  in  his  nwn  name  iiiidnnliudly  -^"^^~"*i' 
— so  wlien  tlic  endorser  ex(ina;iiisli('s  liis  claim  otlit-r^Aise,  (291) 
there  is  the  sami'  reason  the  Phiii'iff  may  sne  ah>iie — 
wliere  (he  coniract  is  made  with  two,  there  is  goo(!  rea- 
son why  both  should  sne — one  of  tliem  by  niisnianaije- 
nient  or  design  might  piejudire  the  interest  oF  the  other; 
it  would  he  improper  tlierel'ore,  tiiat  one  should  he  al- 
lowed to  inai'itaiii  the  suit  alone.  Tiiis  reason  cannot 
apply  io  rases  where  the  interest  of  one  or  more  is  ex- 
tinguished :  surely  the  remaining  partners  may  sue, 
stating  in  tneir  declaration  the  rircnmstances  that  prove 
the  infeiesi  of  ilie  other  to  be  extinguished.  As  to  the 
assignment  of  both,  hiiiig  rei|uisite  to  transfer  the  note 
to  a  tliird  person,  that  is  not  exa'crly  correct  :  it  is  usual 
for  both  to  make  the  assignment  :  bill  yet  if  one  only 
endorse,  that  is  a  sufticicut  transfer.  R'ljd  68.  Dongl. 
630,  653,  65  4.  Then  according  to  tlic  argument  used 
on  ilie  otiier  side,  if  oue  can  transfer  to  a  third  person, 
lie  may  also  Iransftr  to  the  otiier  pai'tncr,  ami  so  the 
Plaintiff  is  entitled  to  sue  as  as'^ignee — but  if  both  are 
required  to  make  a  valiil  transfei  to  a  third  person,  it 
will  not  follow  that  both  names  most  he  endorsed,  when 
one  of  the  payees  is  to  become  solely  entitled.  If  both 
are  consenting  that  will  do.  It  is  absurd,  that  a  man 
should  endorse  to  iiimself.  It  is  evident  in  the  present 
case,  (bat  the  endorsement  of  the  one  partner,  was  made 
by  the  consent  of  both  ;  and  the  endoisdment  may  be 
said  to  lia\e  been  made  by  both — the  only  two  persons  in 
<hc  world  v^iiohad  any  interest  in  that  note,  having  both 
consented  tliat  the  whole  interest  thereof  sliould  he  vested 
in  one  only.  If  the  (Oncurrence  of  b"(h  was  recpiisiie  to 
the  endorsement,  such  a  traosaction  may  well  be  con- 
si<Iered  as  the  traiisactirm  of  both.  If  tmrefore  the  true 
reason  why  Ilie  law  requires  the  joining  of  both  in  action, 
be  what  I  ha\e  suggested,  and  will  (nily  hold  where  a 
joint  interest  is  stili  k'pt  up  ;  or  if  tlie  en<lorsemenf  of  one 
only  be  s.,ffii  ient  to  transfer  the  interest  of  two  joint  pay- 
ees ;  oi' il  the  apparent  consent  of  two  pay  es,  lie  siifti- 
cieiit,  aliliongii  (lie  name  of  one  only  appear  in  the  en- 
dorsement, the  Plaintiff  is  eii(iiltd  to  reio\er. 

Per  curiam — Euh  "f  iw)  join*  partners  are  cntitl'-d  to 
the  wlioli — tie  .)ne  may  release  his  ioierest  in  the  whole 
ro  the  other,  and  that  other  will  Chen  he  entitled  to  the 


ii37  HAYWOOU'S    REPORTS. 

May  irge.  whole  as  before ;  but  witb  this  ^idditioiial  rirrunistancc, 
"'"^""'"^^  ihiit  the  joint  inlei'Pst  of  the  other  havinu;  now  f.ilh'n  off, 
he  is  entitled  solely  to  thi^  whole.  This  ciiciimstanco 
however  must  be  stated  in  tin-  declaration,  otherwise  the 
joint  contract  produced  in  <;vidiMice,  will  not  SHppoi't 
(592)  '''t'  Plaintiff's  claim.  The  court  do  not  lecollcct  any  case 
like  the  prcsetit,  though  cases  circnnistaiiced  like  the  pix'- 
sent  must  very  often  have  occurred  ;  but  upon  principle 
there  can  be  no  ^oud  reason  why  this  action  should 'iiot 
be  supported.  Were  this  an  endorsement  of  part  it  would 
not  be  good  :  lor  the  Defendant  cannot  be  subjected  to 
more  than  one  action  by  any  act  of  tiie  Plaintiff's.  This 
endorsement,  if  it  be  considered  as  transferring  a  rigbf, 
causes  no  multiplication  of  actions  ;  the  parties  as  to  these 
remain  precisely  in  statu  quo.  In  truth,  the  endorsement 
by  one  of  two  joint  payees,  is  good  to  transfer  the  whole 
Contents  of  tlie  note  to  an  endorser,  but  it  is  not  necessa- 
ry to  go  upon  this  ground  now.  Tliere  can  be  no  doubt 
but  that  one  partner  may  release  to  the  other,  and  leave 
liim  solely  entitl"d  lo  tlie  niouey  and  tlip  actiitn — and  of 
course,  the  Plaintiff  is  here  entitled  to  recover.  The  rea- 
son wliy  a  contract  made  with  se^er'al  persons  jointly, 
must  be  sued  by  all,  is,  hec:«i9e  if  ilicy  were  Xn  sue  seve- 
rally, they  could  reco\er  only  theii-  several  proportions; 
no  one  could  ix-cover  all  to  ttic  exclusion  of  the  others — 
and  if  each  could  recover  only  his  pi-oportion.  then  the 
Delendant  ujxiii  one  contrai'f,  would  be  subject  to  as  ma- 
ny suits  as  there  were  persons  with  whom  lie  made  it.— 
If  one  might  sue  alone,  by  the  same  reason,  each  of  thetn 
mightsue  alooi'.  All  this  mischief  is  axoided  by  otie  joint 
action  brought  by  all.  If  each  one  of  them  could  sue, 
then  either  the  U<;feudant  would  l»e  doubly  charged,  or 
one  of  them  miglit  recover  and  receive  the  money  to  \{\a 
own  use  without  the  interterenre,  and  to  the  total  exclu- 
sion of  the  otiiers.  This  ini  onvenience  is  avoided  liy  a 
joint  action  ;  but  wherever  the  reason  of  a  rule  ceases, 
the  rule  will  also  cease.  In  most  instances,  more  pro- 
perly speaking,  the  rule  extends  no  furthervihan  the  rea- 
son of  it  warrants;  and  wherever  the  easels  so  circum- 
stanced, tliat  an  action  hy  one  only,  will  not  be  accom- 
panied or  followed  by  the  mischievous  coiise(|ucnccs  \ie^ 
fore  U(ehtioMed,iherecan  be  no  good  legal  ol)jectioo  against 
it  thai  i.ppi  irs  in  the  present  insi.mce.  VVherc^one  can- 
tint  be  iiipired,  hy  the  other's  proceeding  for  the  whole,  as 


Haywood's  reports.  338 

lie  cannot  be  vvheti  lie  iias  relinqinslicd  his  whole  demand,  *•"  1796. 
tli'M-e  i.--  n'l  reaS'iii  Coi-  s;i_viii,£j  iic  slull  smt  ,- !■(>••  it\  ;i|i<ni'.  -''"''''^^ 
It  iiiju'cs  not  ills  riiinji.iiiiiiti,  nor  dues  il  take  fr-u!ii  the 
Drfeintaiit  any  advanta,a;t'  iie  mi^lit  (ia\e.  wimc  tlie  anion 
broii(i;lit  by  boili  ;    nor  does  it  snbjeci  liim  to  any  ol' tbe 
disadvantages  tlie  law  wa-i  rarel'iil  .opi-eveni,  wlien  il  or- 
dered  tli'ise   PlviniifTH  to  sue  joiiillv,   lliut   were  joinllj'    (293") 
corh ''tied.      Tile  PlaintllT  tiad  a  veidict  ami  Judgment. 
Vide  4  Bac.  M.  66J.     1  Mo.  102.   ' L   Ray.  340, 

State  V.  Jolinstoii. 

One  bidder  at  s  Shpiiff'ssale  is  onfficient,  out  the  liidder  must  be  one 
who  is  ,.ble  to  :id\ance  the  inoK-y,  wliich  he  fFc-rr,  r  lii  b  ..  A 
tftuni  111  the  nam-  ol'lne  H'  ii-S  it'-fl"b>  iiis  0::>rty,  it  i.is  ,  will 
renctcrtlie  SlitrifF  lia'ile  criminaliter.  Wlien  a  iJefcndaiit  i  c  url, 
is  oidered  inln  custoily  fof  h  fi  .t-,  it  will  bu  itnpro  er  •>  isiiiarge 
him  and  ord<r  ijifa.  lo  issue  ior  the  fine.  I'he  ci,urt  »■.!!  iii*;  j>er- 
mit  independent  tacts,  fof  wiiich  the  fni'iy  won  id  be  iiat)ie  to  ano- 
ther prosecution,  to  be  g^iveii  in  evidence,  in  order  to  enhance  a 
fine. 

Indirlment  a.e;ainst  tiie  Defendant,  f  n'  Hiaf  m 


recovered  a  ju'].a;inent  in  this  cuitt  aia;  .itisi  Howard,  and 
took  out  executioii  ;  anil  put  '\y  same  inio  liie  l^.lliii^.  of 
the  Defendant,  beint;  High-Sheriff  ni  the  county  uf  Oms- 
low.  to  he  exei  uleil  ;  and  that  lie  had  made  reluni  ii  re- 
ii|>oii,  thai  he  had  levied,  biit  could  noi  sell,  fur  Witm  of 
bidders;  wiiich  >  as  a  false  return,  &i'.  Flie  jiidgmeiit 
was  produced  on  tbe  trial,  and  also  tlie  ex^-i  iitioo  vvjth 
the  return  iipoi  it.  If  vvas  proientlia'  ili  •  eXecntioM  was 
put  into  the  hands  of  the  Defendani  in  due  time  lo  be  ex- 
tcuied;  iha^  he  deliNered  ii  to  hi-.  Dejtuty,  who  seized 
guilds,  and  app  .iiitcl  a  day  of  sale;  htt  on  that  day,  tie 
Plaintiff  appeared  ■vsilh  an  intention  f.i  hid  for  llie  pe  .p  v- 
ty,  and  also  another  person,  a  Mr.  Dawseij,  wii'i  was  .Si'iit 
t"  purchase  negroes  for  his  father;  tnai  ihe  D.pii'y  of- 
fered the  properly  for  sale,  and  that  ihe  Del> mlam  HtW- 
ard  bid  for  <ach  article  as  it  was  offered,  a  niucli  iiii;iier 
sum  than  it  was  worth  ;  that  sut  h  bids  svere  receiv.  il  by 
the  Dejiiuy  as  good  ones — the  con-efjuence  ni'  wiiicii  was 
that  no  person  present  hid  higher.  In  one  instance,  Mie 
Plaimitf  bid,  but  Howard,  the  Defendant,  iimnediately  oid 
upon  liim  a  niucli  greater  suui  llian  tlie  propei'.y  waS 
wort ;  ;  whicii  bid  Was  also  ieceive<l.  Thr  £)■  un-y  ee- 
turneU  me  exeeainn  ti  tlie  Defendani,  nis  piiicip.ii,  i-e- 
'{iiesting  bim  to  innke  h  return  upon  it  j  which  ht»  accorti' 
43 


389  UATWOOD's    llBPORIrS 

M«v  1796.  inely  iliil.  as  Stated  in  'hi-  iiidirtni<-nt,  in*,  that  the  pr«- 
^■^'^''^*^^  |,(r      s  ■  z.  (I.  riiiild  not  In-  -.iild  l'>r-  want  of  bidil'-rs. 

Per  curiam,  alter  ar$;iiineiit — NViieii  bidders  camn't  he 
hiid  ill  a  »iU-  ;id\«'itisiil  by  tlic  Sinrifl",  llic  usiiitl   iciurn 
is,  thai  tlie  pr'»|)ei  ty  (•Hiiiint  hi-  ■«dd  for  Wrtiit  of  biddi-is;' 
whi(  li  heiiii;  in  tlie  pliiritl  nninlirr.  Iiiix  occasionod  a  nuI- 
gar  errnr,  which  iiiilia|i|iil\    li.illi  lornierl)  been  cixiiitc- 
naiici-d  hj    hoihc  •>('  tlie  prof.'ssioii,  and  adnpied  but  too 
gem  rally  b>  Sheritl'-. — lliai  tlicre  inusi  h'-  t^\o  bld-hr-*  at 
least  at  a  Shei'lf's  -iaie.      Some  li  .ve  held  tWere  must  be 
tliree — tin  S'ieiiffi>  ui  sell  to  the  highest  bidder,  and  high- 
est,  i-i  in  the  third  degiee  nl' cmiiparisoii.     These  o|)ini- 
o<<^  arc  lounded  on  \ery  greai   iiiisiake  ;    ifnne    bidtler 
appeal  s,  and  no  otliee,  tlie  Slieiilf  ought  to  sili  to  him.— 
The  siibsiaiire  uf  wh.tt  tlie  SlientT  is  i-oininaiided  lodo,  is 
.       .     til  make  the  uioin,)  loeiitioiiid  in  the  execution,  by  s.lling 
^294;      jjj,.  |,|.„|„.,  ly  .   (  iinsei|tiei.il.> .  ll  one  person  ha\ingthe  nio- 
iie_>  "tfrrsahid,  the  Siieiiff -hould  sell  to  him,  and  receive 
;   the  iiioiiiy  I'lMiii  iiini,  it' no  oitier  bidder  appears:    and  if 
ill  Mil  li  caMe,  iJi    Slieritr  returns  lliat  he  i-onlil  not  gel!  for 
Want  of  bidders,  'h.ii  reuiii  is  untrue — but  the  Sliei-ifTi* 
not  to  receive  the  hid  of  any  jiei'Soii  who  lias  not  the  iiio- 
ne^.     A  iiid  means,  an  otfering  of  so  inucii  money  for  the 
priipert_>  exposeil  to  s.th-;   not  the  mere  verbal  saying  of 
till'   |iaitv,  iliai  he  will  give  Si>  murli — tiiiM'elorc  the  bid 
of  Howard,  wlio  had   not  the  money,  on^lit  not  to  have 
be  11   legardeil  ;    he  was  not  a  bidder.     Should  the  She- 
rlH',  even  .ilrer  he  .'las  cried  a  liid,  become  saiisfi''d   that 
the  person  makiii.^  it  liath  not  Hie  money,  he  should  le- 
ji    t  t .  I-  l)nl,  and  sell  to  tiiai  prrsoii,   who  was  the  higli- 
03    iiid'li  r,  having  ili>'  money  to  pay.     It  is  ohjecied.  that 
a  ])riii(  ip.tl  i-  not  liable  criminally,  for  the  in>scotidu<'  of 
lii-<  di  |miy  ;    that  is  ine,  hut  lieie,  and  indeed,  in  every 
Case  liKi   ii,  tlie  High-Sheeitf  is  siip|io.'ied  to  make  the  re- 
tui  it ;  it  is  iiiaili' III  hi    nam< ,  ii  would  mil  perlia|is  be  good 
in  Mrictne^SF  W'TC  it  made  oiher^vise.     It  is  also  proven 
ill  the  present  case,  that  the  return  was  acdiaily  in  .de  by 
the  lli<;h  Shei  itf  tiim^cif  ;   and  lliou,;;h  from  the  represen- 
ta'im  III  Ills  Ue|Miiy,   he  iniglit  not  have  known   that  the 
return  was  iinu-ue,  yet  as  lie  was  a  sWorn  olHcer,  it  wttp 
hii  i.o-iiii'NS  III  see  t^i.H  e\iry  i.turn  m:i(le  by   him  was  a 
till.      11  — it  IS  ai  hi-  peril  it  it  peine  o'hwwi-'e — slniuid 
an    iijetiion  r,f  lilts  kiiitl  pie\  i<il,  no  Shi'i'JI  I  iitilil  lie.  |iun- 
ishcd  trimiiially  tor  u  faUe  rotuiii — he  might  make  all 


Haywood's  beports.  340 

liis  I'phirns  upon  tin-  icpipseiitjitioii  of  lii'-  D  ptity  ;  and^y  •'^^* 
tieri  the  Di;  iity  roiitil  not  lie  puiii-hefl.  f"  Iv  <li<l  iku -^"'^^*^ 
mako  llie  ntiiMi — nor  could  tlif  Higli  Sheriff  'e  (uriiish- 
«d,  lor  lie  (lid  not  know  but  that  ihi-  loimri  was  true — 
and  thus  a  Slieiiflf  \Nould  have  i'  in  his  av  r  'o  si\e  what 
itidulsi  lire  lie  (ileamd  to  the  debtor,  and  defcit  tlie  end 
anil  purpose  of  all  Ihvx  and  courts  of  jiistne. 

The  jury  coiuirtid  him — 111  ii  tl'C  p  oserutor  moved  to 
be  Ht  liberty  to  read  to  the  court,  tlie  returns  npori  ;« .s;reat 
number  of  other  executions  made  by  the  same  Slieriff.  in 
order  to  aggravate  the  fine  ;  and  it  was  moved  by  Jones, 
Soli(itor-Geiier;il.  that  the  rourt  had  in  oilier  inst.iores, 
allowed  the  character  of  a  Delendiiit  to  be  shewn  by  affi- 
davits, ill  Older  to  enhance  the  fine. 

Per  airiam — This  has  been  oiilv  done  where  ihe  mat- 
ters shewn  to  the  court  by  way  of  aggravation,  have  been 
relalive  to  the  inatti-r  for  whirji  the  D(  fendant  tia'h  been 
con\irted,  not  where  tliey  are  iiidependcol  I'acts  for  ^Wiicli  C^95) 
the  party  is  liable,  to  another  proseciiiion.  We  will  not 
hear  the  olier  retums  read.  A  few  days  after,  tin'  court 
fined  the  Difend'.m  t  n  ly  pounds,  mid  oidereil  hioi  into 
the  (  ust<idj  of  the  Shei-itf  nf  Ne>.-Hano\er.  'ill  tiie  fine 
was  paid.  Some  tiays  after  tirs,  an  'iiplicatii.n  was 
made  to  disciiarge  the  Delendain  out  of  custody,  ^s  he 
hail  not  wbrewith  to  pa)  the  fine  now  with  b;m  ;  a. id  to 
issue  A  fi.  fa.  to  the  county  of  Onslow,  for  the  levying 
thereof — and  it  was  urged,  that  tiie  court  had  done  so  in 
the  cas''  of  the  \Varipntoii  fines. 

Per  curiam — Th  proper  process  to  compel  payment  of 
a  fine,  is  a  capiaiur  pro  fine,  which  is  issued  when  the  iiar- 
ty  is  not  in  court  a"  ih<-  time  the  fine  is  laid  ;  hut  when 
he  is  ill  court,  and  is  oi-de  cd  into  custody,  i'  is  lik'  lie- 
ing  in  custody  u|ioii  a  capias  ad  satisfaciendum,  and  tbeii 
a  discharge  from  them  by  the  Plaintilf's  (iiiiseiit,  will 
dis.  Large  the  |iarly  from  any  other  execution  :  and  per- 
haps .should  ihe  court  now  give  into  Un-  pi-esem  motion, 
it  ma\  hereafter  be  said,  that  nfi.  fa.  was  irregiilar  aS 
his  discharge  from  his  presi  nt  roi.tii,,  ment  couli'  i  ■  have 
been  iirocurrd  h:id  the  S'ati-  .pj).  sed  it.  So  th.  n  ion 
Wa- il.niid.  Vide  Sulk.  56.  Co.  Inst.  ^2\ 8.  Sa//c.  400. 
4  m.  Com.  5<SS.     8  Ilrp.  59  b 

Note.— Upon  ttie  first  point,  see  iHtale  v.  Joi/ce,  ante  f^. 


341  Haywood's  bepoiit«.. 

Miy  1786.  Annnymous. 

Suit  commenced  ag'i'inst  «n  executor  r'  turnable  to  the  Snperior  Soort, 
ant)  suit  aftr  rwarrlv  commenced  returnable  to  the  Cnii'v  C  urf, 
whid)  sal,  first:  to  these  latter  viiit*  t'i>  cxec'ilor  put  n  -iiri'  fleas 
as  mtile  the  as^ets  respo-isilile  for  ilitir  p»yment,  .nd  t  'l  s">,  in 
the  Superior  C&nrt  he  pi.  ad- il  that  he  had  i.o  assets  txc<  |.t  what 
was 'i  bit- to  the  -.vmeMi  of 'mi-  .ther  suits.  Tht  latter  pi,  a  is  not 
(rod-  It  ought  t  havt  confess,  d  jiidgmt  nt  to  the  suit-  in  the 
C  u'^'y  tvMjr',  Hiid  then  plead  those  judgments  to  the  suit  in  the 
Superior  Court. 

This  was  an  aciicin  aj^ninst  an  exeriitor,  who  pleaded 
th '♦  hp  hid  fiill\  adiiiitiisii-rt'il  all  ih<'  .issets  of  (hi-  testa- 
tor. rxT'p  sii  itiiirli  whirh  w  s  liiihle  to  fdiiner  jud^- 
mei^s  '.rid  suit'i.  This  anion  was  ronmierifed  prior  to 
some  iiihi'fs.  which  were  the  suits  Mlliidcd  to  in  the  plea; 
but  (his  action  \\a«  rptiirrr'h!t>  to  rhc  Siipcrio.  Court,  and 
the  otheis  to  the  Count j  Court  wliich  v^a-^  hi  Id  b- for.  the 
Siijp'ior  Coisrt  :  nnd  'o  these  suits  in  the  County  Court« 
the  |th  ■dings  were  such  hs  admilteil  assets  of  the  testa* 
tor  siiffii  iftit  to  siilisly  thfin.  In  suppoit  of  this  pha,  It 
■wa-  aij^ued  for  flip  executor,  that  although  before  any 
suit  C'luiineiictd,  ati  execntor,  in  case  of  deficiency  of  as- 
sets, may  py  whicli  of  two  rreditor"  of  e(|iiiil  dignitj  he 
ma^  think  prpi'i-;  yet  where  «(tie  of  ilitin  halii  com- 
niitired  suit,  he  ct^itnot  pay  the  otiter  t"  his  prejodire  ; 
a>id  therefore  he  who  firs*  cimtnences  his  aclioii.  is  first 
entitled  to  iiiiymeiit.  The  ex<'(  utor  in  the  present  case, 
cotild  n<it  with  any  siife'y  plead  otherwise  than  he  hath 
done — he  hath  (tleaded  the  liuth  of  his  case  to  the  suits 
be  Was  first  bound  to  plead  to — Ite  hath  admitted  assets, 
and  ni  'd'  an  aiipi-opiiation  of  iheni  to  the  crechtoes  in 
these  suits  ;  and  to  this  suit  which  he  was  afterwards 
(^96)  bound  to  pitati  t<..  he  hath  pleaded  in  substance  'hut  np- 
propiiatioo.  Theie  w»s  no  I'lher  course  fr.rhin)  to  take. 
Tlti>^  method  of  pieadint;  is  satictioned  b*  the  rase  of 
ffafers  and  Ogdev,  aii<l  atif)tlier  administrator  "f.Vetf,  re- 
ported inZJoM^.4  53.454.  There  the  »xecu'or  ii.id  a-sets.liut 
to  a  certain  aitioun'.  n<>t  atlequate  to  the  paynicnt  ofihe  de- 
Diatid  of  either  cndilnr;  tiut  he  confessed  what  assets  he 
had  t..  the  demand  of  one  creditor,  .tnil  to  tip  oilier  de- 
m  ind  fd  the  otiier  creditor  he  ph-aded  the  othei  suit,  and 
the  coffessinn  of  the  assets  he  iiad  fo  that  demand — nod 
it  »>■  as  held  well.  In  il  e  pe  sent  CHse,  the  execiii«ir  had 
not  asset-i  to  satisfy  all  -he  creditors;  hot  h'-  ple.ided  to 
<hti  tiuits  in  the  County  Court;  so  as  to  admit  and  appro- 


Haywood's  kepouts.  S42 

priate  to  these  «leiTirtiict.s  nil  tlic  HS^ets  le  had,  »n«l  he  has 'W*)'  ^'^^^'■ 
pleaded  tlia*  iippiciii  ia'ion  fn  tliis  sui'.   It  Wi'i'ld  be <xees-  -^~''"^'^ 
sively  hard  slcuilii  Ik  he  coiiipclled  ti  sali^Cv  il  is  dcinaiid 
also,  whirli  iiiusi  be  out  of  his  own  pocket  if  KMtisfied  at 
all. 

E  contra — It  was  ar/rned  that  amotij'^'it  creditors  of 
equ:il  doircee.  it  is  not  the  first  stiit  that  ci.tit'es  to  priority 
of  pitjmetit  ;  hut  the  fiis!  oliiaininij  of  jndjsmetit.  Off. 
Ex-  138,  144.  Mhfie  there  lire  se.\eral  deiTiands  of  <'qiial 
digi.ity,  and  the  creditors  atl  sue,  and  the  executor  liath 
assef*,  (lilt  for  par(.  i!  lie  ph'ad»  d  'o  eiich  of  thi-sc  demands 
Uiai  l^f-hnih  as«>(s  but  lo  a  certain  aifloimt.cach  of  thein 
n)a>  ha^e  jndiToicrit  lo  that  amount:  or  if  he  [dead  to 
eac!  plene  udminisfriivit.  at  the  trial  a  verdict  timst  be 
ajijaii  st  hioi  npor  ."rich  dittiHod  to  the  flmniiot  of  the  as'- 
se  «  ;  tiecause  at  tlif  tiim-  of  the  pl^a  pliiuhd,  each  plea 
Wiis  iiiiliiic,  iiiid  'lie  jury  in  each  cau<e.  most  njinn  siich 
cvidenr  (•  say  tliat  it  was  not  a  ti  iie  plea  ai  the  time  when 
ph  ;  ded  :  and  sn  the  verdict  in  einli  cause  niusi  befot  the 
Piair.'iff.  If  he  plead  lo  some  of  these  suits  the  ani'iunt 
of  the  iissets,  and  to  the  others  that  he  liHtli  made  an  rtp- 
P'opriation  of  his  assets,  that  will  not  be  e^ood  pleadinc:; 
because  after  suits  coniinenceii,  lie  Ivrts  no  a  riy:litto  nay 
Nvhoni  lie  ple;\st  s  firs',  liut  only  such  of  llieni  as  ronld 
■firs'  fret  jndsu'eir.  In  such  casi'  where  tisere  is  a  defi- 
eiency  nf  jisseis  to  pay  all.  the  pi'oper  method  to  he  oh- 
servfjl  hj  ail  executor  is,  to  confess  jud.s;oient  to  sutne  of 
the  i  rf'ditiiis  to  the  amount  of  Ins  assets,  and  pleati  the 
jndji'u  ■  nis  to  the  other  suits.  Wood' s  Inst.  332,  JVels. 
^&.'-87.  God  919.  -JSI,  3-24.  1  P.  mi.  295.  As  to  the 
casi  <'ited  'nini  Douglas,  that  is  not  appliciiblc  t(»  this — 
there  ilie  a'-srts  W' n-  not  snfSriiiit  to  satisfy  the  demand 
of  eitlui    Plainiifl;   and   i'or   that    reasnn   the    PhiintiflT  to  , 

■whose  suit  tlie  appropi iation  was  mnde,  would  in)f  enter  (297*1 
jndjrinent  so  that  ii  could  Ue  pleaded  lo  the  other  suit  ; 
and  the  execut<ir  had  n">  means  to  compel  him  to  entei- it 
—hut  in  the  case  ni'W  before  the  coni-f,  the  assets  in  tho 
ha'nds  nf  the  executor,  \v«  re  to  a  much  lart?''!-  amount 
than  the  scleral  demanils  sued  for  in  'lie  Count}  Court ; 
and  had  the  execul'HS  confessed  Jndjjment  scxerally  to 
the  amonnt  of  each  demand,  the  court  woulil  have  com- 
pelled 'he  PixinliflT--  in  those  suits,  to  lia\e  enteied  their 
res;  tcti\e  judgments.  So  that  they  init^lit  be  pleaded  t*^ 
fhissnit. 


313  UAYM'OOn's    REPORTS. 

M-iy  ir96.  fgy  curiam — ^^'lll^•p.tllt•l•p  an' sc»ppaldemarn1s  of pqual 
''■^''■C^^^  (]i^-iii>>.  iinrl  a  <1('firi<'iirv  of  ns-iP  s  I"  p.iy  nil  llu'  r  •  ilit-MS, 
bel'oir  any  suit  bioutjlif  tli<-  pxrrdUM-  mnj  pay  '  •  i!ic 
aiiiotint  of  ilic  Hssifis,  wliidi  iif  them  hr  piloses:  Imi  if 
suit  be  bniii2;l)t,  he  r;iii  no  ioiiejrr  inako  a  vi)liiiilar>  ()iy- 
mrnf — the  coninu-nccinriit  of  the  suit.'  and  liis  lin»  ins:  no- 
ticr  thpi'fof,  n-sti'iiiiis  bim  IVum  m-'kius;  any  vohmtxry 
payment  ;  but  still  it  is  not  pri«)rity  nf  suit  'hnt  etniilcs 
to  pi-iriiity  of  paMiient,  but  tlm  fifjat  obtHiiiiii^  of  jiidaf- 
mout — conscr|uHiilly  the  pipsdint;'  a  fotincr  suit,  ;»s  the 
oxoCMtoi-  liHs  (loue  licrr,  is  no  gO'nl  pica  in  bur  of  the 
Plaiiitiflr.  It  .should  havp  liC'ii  a  plea  of  a  r»ioiPi-  judg- 
ment,  and  that  would  have  been  (^ood.  Tlie  ps'iper 
course  for  an  i-xerufor  to  take,  when  tb  're  isa  drfi  j'-ucy 
of  assets  and  he  is  Sued  by  srvcral  crelitors  'f  cqia'  de- 
gree, i--  to  conrpss  judi^iiieni  to  as  niany  of  thi'ir  di-niai>ds 
as  \\iil  cover  his  assets,  and  pli-ad  tlicse  judsjinenfs  in  bar 
of  the  other  rreditors.  Whi'io  'here  are  two  or  iii^re. 
suits  of  equal  diejnity  roiTiinrnced  as^aiust  him  by  m-vrpal 
creditors,  and  lie  hath  not  assets  en'>uu;h  to  pay  any  one 
of  tbi'iii  lie  must  plead  to  some  one  oitliein  the  ain"un'  of  bis 
assett,  luakint;  an  appri>|U'ia<ion  of  them  tn  that  deni.ind, 
atitl  plead  Miai  luitier  in  bar  to  the  other  suits.  The 
Plaintiff'  had  judgment, 

Anonymous. 

The  pica  oi'plene  adminittravit  mnsi  be  true  when  it  is  put  in,  and  not 
at   ilie  timeofilie  irial. 

This  was  an  artion  ajjaiust  an  cxerutor  who  pleaded 
plene  admhiistrnvit.  and  tipon  e\  idenee  it  appeared  th>'  ex- 
criitor  lead  irally  .idniiiiistered  all  the  testator's  assets  in 
pft_\  nieut  of  his  delits ;  but  t.'iat  a  threat  tininber  of  tlK-so 
pajinenfs  had  been  made,  some  upon  judtcmrnt  and  others 
voluntarily,  a  long  time  after  (lie  plea  pleaded,  but  pre- 
vious 'o  this  time. 

Per  curium — The  only  thitig  now  to  be  considered,  is, 
whether  tin   plea  of  fully  administered,  were  true  at  the 

//jeg-i     time  it  was  pi-  aded — nut  whether  it  b^  true  at  thi-i  time. 

^"  '  Aid  as  it  apitears  that  assets,  to  more  th.in  tin-  ainnunif 
ol  111  •  de>i!a:id.  li  ive  111  ei!  i-xpended  sine  this  jtlea.  lu  Mie 
discharge  ol  Judgments  obtained  since  the  pleading  tliere- 


Haywood's  urpoiits.  S44 

of,  (he  pica  of  course,  (nulil  lutt  he  true  when  pleaded. —  ^'^v  '''^^' 
Ti*  riiiii.tiir  liiiil  judgiiieiit.  ^-<-^^'w 

jjoT'  —Vide  Eviins  v.  Nn-rts's  Jidmr's.  post  411.  Suru.  Partners  of 
McjVausliton  u'l  t'o.  >  BUu-lier's  Admr.  post 'i.\7  Churchill 'i  i\  Im- 
mottty.  Cameron  C'inf  Hejj.  55  J,  S.  C.  I  Miirpliey.  39.  Collins  v. 
lfnderliill\  Ex'r.  2  C.  L  Repot  579. 

Uot^g's  E.xecutdi-s  V.  White's  Adiniuistfators. 

Tile  Admliiistra'or  h:itl  CaiUd  to  ple^ti^!  pUne  a-!miiiistravil,  urany  other 
pica  shewing  a  want  I'f  assets,  and  ti.t-  i'l  .'nl  fl'liad  I'Otalned  ju!g- 
m  ■'•,  ail  '  upon  execution  rssui-d,  «•  nulla  bona"ir-i\  bf'n  relumed: 
held,  tli.it  tbf  .idmiuistr-.itdr  tt  <s  buiiiiil  lo  \r.ty  de  bonia  propriis :  and 
foi  ''Ht  pui, lose  a  special /r.  y</.  might  issu' ,  rtciiunr  Ik-  n  U' li  of 
"  nulla  bona,"  and  comniaiiihiijf  the  SliJi'dl't'  lev)  de  bonis  iiiieitati, 
if  U)  lit:  found  ill  the  hands  ot  the  administriitor,  it  not,  de  bonis  pro- 


III  this  action  (he  admiiiistratorliad  fiiled  to  })ltradpf<;?iey;^g  3ntg 
(idministrnvit,  it  any  oilierplia  ^hev.in.a,' a  wani  t>ras..it-^  il8. 
— tl)f  Pl:'iiiiiR'h;iil  protec'i' (i  t"  jiKiiiinciit  in  ihc  U'^llal 
foMii  to  be  levied  de  bonis  testaloris.  He  had  t  ikcn  a_^. 
Ja.  (ijiKii  this  j(iilj;iiu'iii,  to  which  tiic  SliCfifThiid  returned 
nuUa  bona.  And  now  ii  was  innx-d  on  the  ])art  of  the 
I'lainiiflT,  tiiaf  a  sjiecial^. /a  slmuld  issue  to  thi-  S.ienff, 
to  iivy  the  deht  de  boni^  teslatnris,  if  any  to  be  toniid, 
and  if  iiiit  (/e  6n»is  ^i'(7>ri;o-  f  hi-  ad'iiinistralur,  Tliis 
niotio.  was  <>p|)iise(!  b\  Spillar — he  .irj^ned  that  there 
could  he  iio  judi^iiieiit  de  bouts  propriis,  ajiainst  an  exe- 
Cutoi  oi  aiiiiiinistratiir,  hiii  vviien  iic  pleaded  a  false  plea, 
the  falsity  v.lnrrof  was  vviiiiin  his  own  kinnvleds^e  ;  and 
which  plea  «eie  it  true,  would  h<-  a  |U'r|ietual  bar  to  the 
Plaii.iiir.  Off.  Ex.  ;84,  185.  Gud  19:;,  199.  Where  he 
pleads  nil  plea  at  all  in  leijieci  of  iliea-se  s,  oeii  hiMou- 
fess  the  action,  or  snlfer  jiMljjnient  h>  a  noii  Sum  iiifor- 
mutus,  the  jud.^ineni  can  only  be  de  bonis  li'statoris.  Off. 
Exec-  187.  E  contra — It  was  ,ir,y,iieii.  liial  by  the  la %v  nf 
this  I'luntry,  lands  in  the  h.iinis  nf  the  heir  or  devisee, 
ail  liahle  to  the  debts  of  ilie  testatoi,  where  the  |iersiiiial 
Csi  te  is  insiifficiiiii  ;  but  tup  woiils  and  iheexpfess  pro- 
\isniii  of  the  ai  Is  on  that  siiijecl,  viz:  1784,0.11.1789, 
c  39,  direct  that  the  laiuls  shall  lie  resoited  lo  only  in 
cases  where  the  insulliciency  of  the  persMiial  i-statejndi- 
cial'y  xiipeais  on  the  recoriJ  upiit  ilic  plea  of  ptene  ad- 
ministruvit,  no  :.ssrts.  oe  n.>t  suiBeieni  assets,  hi-iiijj  \e- 
riho  n\  ho  li  uiinj;  .if  a  jury.  Hi.- creditor  (Mnnot  lake 
>.'nt  his  sci.fa.  against   tlie  htir,  before  these  pleas,  or 


346^  aAYWOorr's  reports* 

Mny  ir96.  snme  of  them,  are  fouinl  hy  lln'  jtiry.^  Wifliout  consider- 
^'^^^'"^^  iiii;;  flii-roloiv  v\liat  the  law  may  Itave  been  heCoiv  4he 
passing  <>r  these  acts,  il  is  now  ci-rraiiilv  law.  tin'  if  an 
executor  will  not  plead  a  want  nf  assets,  he  must  be  taken 
to  liave  enough  to  satisfy  the  Plain'ilt's  deinamt  ;  since 
by  not  pleading  in  that  manner.  Iiepievents  the  Plaintiff 
ivom  having  recourse  to  the  real  estate.  Were  tlie  exe- 
cutor under  such  circumstances  not  liable  de  bonis  pro' 
priis,  lie  :niglit  render  these  laws  in  favour  of  crMiitors 
C299)  "'  ""  <t^^il<  U''  Would  hitve  tiotliing  to  do,  but  to  avoid 
pleading  aiiy  of  these  pleas,  and  the  creditor  would  be 
dufeaied  forever  ;  hi'  could  have  n<i  riMJiedy  against  the 
exerutor,  nor  could  lie  proceed  against  I'lC  real  estate  of 
the  deceased.  Whatever  tnight  have  been  (he  lawbelnre 
the  passing  of  these  acts,  uad'iuntedly  it  is  ni)w  certain, 
that  the  exi  (utoi-  is  liable  to  answer  de  bonis  propr lis.  in 
all  Cases  where  he  t'iN  to  plead  a  want  of  aaseis  to  sa- 
tisfy t/ie  creditor's  demarid. 

Per  curiam — It  is  contended  that  before  an  executor 
can  be  charged  de  bonis  propriis,  some  pi-ocess  should  be 
issued  against  him.  to  winch  le  ntightsli  \\  by  phaoing, 
that  he  ought  not  bf  charged  de  bonis  propriis  ;  and  cer- 
tainly it  in  a  lase  like  the  |»iesent,  the  Defendant  may 
pLad  plene  adininistravit,  such  process  siiould  go  bi-fore 
a  judmneni  de  bonis  propnis  shall  he  entered.  It  is  to  he 
coiisidi  red  toen  in  ilie  hrsi  place,  wlntlu-r  >vere  a  sci.fa. 
now  issiird,  Ciiiiid  the  Defendant  be  admitted  10  pleail  to 
that,  plene  administruvit — as  to  wliii  h.  the  rule  in  (his 
case,  as  III  all  oihris.  is  this,  where  the  Dilendaiit  to  the 
original  action  migln  have  pleaded  a  matter  of  delencc, 
and  failed  to  do  11  ai  the  proper  time  allo^ved  by  law  for 
that  purpose,  he  can  never  afterwards,  be  admitted  to 
plead  ihat  matter  to  any  other  suit  grounded  upon  that 
original  suit.  He  cannot  plead  to  a  sci.fa.  any  di-fence 
he  might  have  pleaded  to  the  original  action  out  of  wliicli 
it  is  (lerivcd.  Mow  it  is  evident  he  might  have  pleaded 
plene  administruvit  to  the  former  action,  if  the  fact  \»cre 
su(  h  that  he  had  fully  administered;  and  therefore  sh..iild 
a  sci.  fa.  now  issue,  it  could  be  of  no  service,  to  the  De- 
fendan;,  as  to  any  defence  he  mii^ht  set  up  under  11.  As 
to  the  manner  of  cha  ging  an  executor  de  bonis  propriis, 
the  practice  has  varied  at  ditfeienl  'inns  in  difl'eient 
courts — sometimes  they  have  proceeded  by  way  of  sci. /a. 
inquiry,  whereupon  nulla  bona  returned,  the  Sherill  «as 
commanded  to  make  the  money  as  befoio.;  andif  hcconid 


J 


Haywood's  reports.  346 

Ijnd  no  goods  of  the  testator,  then  »o  enqiiit-e  by  a  jury  May  1796. 
whether  the  Defendant  had  wasted;  hiuI  if  the  jury  found  ^^'"^'''**' 
a  devastavit,  Ihen  to  return  the  \ridict  to  r.imt;  wiiei-e- 
upoii,   liieri!  went  out  a  set. /a.  against  the  exernt-n,  to 
shew  cause   why  the  P-UMTiflT  ihoiihl  not  have  sati'-fnc- 
tion  de  bonis  propriis.     Off.  of  Executors,  166.     At  other 
limi'..  til''  iirartirc  hath  been,    lor  the  Site  iff  to  eefni-i!  a 
devastavit;    or-  if  he  is  utivvillitii;  to  dn  -'>.  f.  ■  ihe  i-uirt 
to  eiiinpel  hiin  to  i-eliirii  a  devastavit.     Off.  o/  Exe.  168. 
God.  199 — and  thei-eupon.   to  i  sue  a  w.it  «)f  oxt^cn-ioii 
Coiiiinanding  him  lo  levy  de  f)onis  propriis  ;  ot-  where  the 
Slieriff  returns  nulla  bona,  to  i-sne  m  siiccial  fi.  fa.  coin      (300) 
manding  him  to  levy  ihi-  debt  de  bonis  testatoris,  or  if  it 

could    apjlrar  that  the  CXiVu'oi    ha-    rtas'i  d,  &<  .    Iheti    to 

levy  it  of  Ills  osvii  ft-xid^.  Off",  if  Exe.  167.  '68.  5  Re. 
Fotiifer's  case.  As  to  tin- sci. /a.  inquiry,  anil  set.  fa. 
thereu  .1)11.  it  is  said  in  the  hooks  hefore  cited,  iha'  tliat 
course  hath  been  I'lg  disused,  it  not  bein^:  so  beneficial 
a  course  fop  (he  Dcf.  ndant  as  that  whit  li  directs  the  Sne- 
riff  to  return  devastavit  ;  for  'hat  in  the  first  case,  if  the 
verdict  be  vsronj:;.  the  Defendant  is  withont  redress,  no 
remedy  lyina;  af!;aiiisi  the  jury — attain'  will  not  lie,  be- 
ing not  a  veidic  tipoti  ;in  issue  joined — arid  he  has  no  re- 
medy against  the  Sheriff,  for  he  is  jusfified  in  his  i-e'urn 
by  the  verdict  llovvever,  the  other  way  of  returning  a 
devastavit,  seems  equally  useless  ;  for  if  'he  DefeiuJHiit 
bath  filled  to  |»lea(l  a  vvanl  of  issets,  ii  is  an  admi-sion 
of  thcoi  ;  and  a  jury  will  not  hav- it  in  tlieir  p  .wn- to 
say  non  devastavit.  So  if  the  Slui  iff  ,vlter  such  omi'sion, 
returns  devastavit,  Iv  cannot  be  lihble  to  an  action  for 
that  reiurn  ;  lor  the  jury,  as  well  as  the  Defendant,  are 
estopped  by  the  record,  to  say   th.it  he  did  not  waste  as 

the  Sheriff  hath   returned.     Salk.  310.     L.  Ray.  589 

Eith.r  of  these  methods  then  can  aii-v.er  no  vHfmhle  |)ur- 
pose — tliC  Di fendani  by  omitting  lo  plead  want  of  tsseis, 
becomes  so  absolutely  liable  to  answer  de  bonis  propriis, 
tha'  no  plea  he  can  make,  nor  ..n\  tindiog  otajnrj.  can 
afterwards  cveinpt  liiiii.  If  the  D.fndant  can  have  no 
benefit  by  either  of  these  mode-  but  that  'if  delay,  it  fol- 
lows, that  tlic  l.'W  will  not  r<quire  either  of  them  t)  be 
piirsueil  ;  for  in  directing  process,  .he  law  alwtjs  sup- 
post  s  ilie  Defendant  may  have  some  deiencie  o  iiiakv— 
Will  re  he  call  have  tionc,  it  i.-,  us.  les^  and  nugatory  io  is- 
sue process  to  him.  In  every  possible  ca»«t  at  the  com- 
44 


347  HAYWO»D*S  REPORTS. 

May  1796  mon  law,  where  the  Dercriilrtiit  nmits  ti>  plead  want  of  as- 
•^"^''^**'  sets,  uhoiher  it  happen  by  ronfi-ssioii  of  Uip  action,  judg- 
ntent  by  default,  cii-  citherwise,  such  omission  ainoiiitts  to 
an  admission  of  ass'ts.  It  must  be  deemed  that  thert-  are 
assets  en(Mij?h,  when  the  executor  whose  busiiii-ss  it  is,  will 
not  sav  the  contrary.  Ai.d  when  a  jiidgnient  is  onie  Ri- 
ven Ha;ainst  an  executor,  who  has  assets  enou,e;li,  he  is 
bouDil  to  (irodnce  ihein,  or  |»ay  (he  jud,u;menl  hims-lf  de 
bonis  propriis.  3  Term  685.  To  pi-nnit  the  Di-lendant 
to  i>l-  ..(I  a  want  of  assets,  after  the  proper  time  for  plead- 
ina;  is  passed,  is  not  only  ai^ainst  tha'  order  which  in  all 
cases  i-.  iibsi  rved,  but  it  tends  to  make  proceedinjjs  in 
com!  infinite  ;  and  to  introduce  delays,  which  tlie  order 
of  pl«  auinjn;  was  in\Ciiie(l  to  pre\eni — and  besides,  to  what 
time  will  such  a  pha  after  judgment,  relate?  If  it  relate 
(SOl)  Id  th-'  time  w  hen  tt  is  put  m,  then  the  assets  may  have  been 
applieil  in  the  iiiicrn)edi;ite  time  in  discharge  of  other 
debts.  This  emliles  the  exei  utor.  after  suit  insti'uied 
against  him,  -.inil  even  after  judgment  upon  it,  to  pay 
othee  ( rediturs  ;  wiiich  is  ilirectlj  aja^ainsi  law  ;  for  af- 
ter suit  instituted,  he  cannot,  vcdutitarily,  pay  any  other 
creditor  of  equal  degree  first.  Or  v\ill  it  relate  to  the 
time  when  process  in  the  original  suit  was  first  taken  out? 
Sh  'l!  tne  plea  stale  that  at  'he  time  of  the  leading  process 
in  'he  first  suit  taken  out.  oi'  any  lime  since,  he  had  not 
in  his  handsany  of  the  good-,  &f .  of  the  testator  to  in:  ad- 
ministered i  II  this  nuist  be  stated,  then  why  not  inforcc 
him  tw  plead  in  the  first  inslanrc?  Is  it  not  belter  that 
he  should  do  so  and  Nhe»  his  situation  at  once,  thin  put 
the  FlaintiflTto  tjie  Iriiitless  expeuce  of  a  second  suit  by 
sci./a.  It  would  be  better,  as  it  would  save  Ihe  addition- 
al expense  an<l  litigation  of  a  second  suit — that  is  a  strong 
aigiime"!  ;o prove  that  the  law  re(|uires  it.  It  cannot  be 
supposed  in  a  c;ise  wiiich  s«>  often  happens,  that  the  law 
has  I'lit  fix'd  u|)on  that  mode  of  conducting  the  pleadings, 
that  is  liest  cah  ulaled  to  oust  delayv  and  prevent  liliga- 

tioh  and  expetuSi and  then  what  reason  can  there  be, 

why  a  special^. /«.  to  levy  de  bonis  testutoris  si  ct  si  noii 
de  bonis  propriis.  simll  not  issue  at  once  r  'I'ln  retinii  of 
iiuIUl  b'ua  is  liien  as  complete  a  proof  of  a  devastavit,  as 
if  that  were  relumed  expressly  ;  for,  if  by  the  previous 
judgment  and  proceedings,  it  apjieais  to  thr  i  nurl  he  has 
assets,  and  is  hound  to  produce  (hem  or  pay  the  debt — 
and  alao  by  the  Sherifl's  retnrn  ui  nuUii  bona,  that  he  liafi 


J 


HAVWOOD's   REPOTITS.  348 

not  produced  tliem,  dors  it  not  fo'low.  that  ho  is  bv  wliat*''>  i''^^- 

already  appeais  iipdn  iccord.  li.ibic  de  h  vis  prnpriis ■•^^v->»' 

Does  the  i'<cord  not  prove  tlix  h'  tia-  no  "liiir  alie. na- 
tive, and  can  ni  ike  no  pleii  V-  exempt  his  own  iTcper 
godds  ?  Tiie  letiMii  ,{  vuUa  bona  privc*  hi-<  lia'ulit*  as 
compIcieI_\  as  tliat  of  a  devastavit,  since  Imtli  itni-t  iinvi- 
tably  en. I  in  the  same  mnsiqiK  ii<c — that  fit' an  (Xxiniiin 
de  bonis  prnpriis.  It  rarinot  Ihei-ifort,  be  "I"  any  service 
to  the  Del-  iidant  to  require  a  set.  fa.  or  a  leiorn  ol  a  de- 
vastavit— they  can  be  no  more  than  foiins  Ipading  to  the 
same  event,  as  tliat  of  a  special^. /rt.  issued  upon  a  re- 
turn lit  nulla  bona — and  as  the  sci./a.  grounded  irumedi- 
ateiy  upon  the  lelorn  t  if  mill  a  bona,  ov  upon  tiie  lio  ling 
of  nulla  bona  upon  a  sd.fa.  inquiry,  can  be  of  no  -.eivice 
■whatever  to  the  Defendant,  as  he  cannot  avail  himself  of 
the  iih'-A  o\' plene  administravit  under  (h' in,  not  having 
<lone  it  before,  there  is  no  good  legal  reason  for  using  (302) 
these  mod(  s  preferably  to  that  of  a  special^  fa-  upon  tlie 
icturn  of  nulla  bona — llie  ultimate  proceeding  cither  way 
will  turn  out  the  same  thing — and  nothing  miwe  will  be 
gained  by  (he  sd.fa.  than  a  fev*  terms  longer  delay  to  the 
Plaintiff.  But  if  it  can  he  supposed  the  cumnion  law  is 
not  so,  jet  since  the  passing  the  art  of  1784,  there  is  the 
greatest  reason  and  justice  in  the  world,  tl'at  the  execu- 
tor or  administrator  who  fails  to  plend  plene  administra- 
vit,  ^'c.  should  pay  the  debt  out  of  his  own  pocket  ;  for 
by  such  omission  he  effectually  iiinders  tiie  creditor  from 
having  any  satisfaction  out  of  the  land.  Since  therefore 
a  further  process  by  sd  fa.  against  the  Defendant  will  be 
of  no  real  benefit  to  him,  by  letting  him  in  to  phad  fully 
administered,  and  as  the  issuing  of  a  special  fi-fa-  upon 
a  return  ui nulla  bona,  is  sancioned  by  the  Office  of  Exe- 
aitors,  a  book  of  high  authority  upon  this  subject,  and  al- 
so hy  the  Judgment  in  Pottifer's  case.  5  Re.  32 — and  as 
the  principle  of  these  cases  is  recognized  in  a  decisiou 
of  the  court  last  >priug  at  Fayelteville.  let  a  special/./a. 
now  issue,  reciting  the  return  of  nulla  bona,  and  com- 
roanding  the  Sheriff  to  levy  the  d.  hi  i|f  the  goods  of  tiie 
intesti.te  in  the  hands  of  the  adiniiiisti';vior  ifto  be  found, 
and  if  not  to  be  found,  tlieii  of  the  pi  oper  goods  of  the  ad- 
ministrator himself — which  was  done  accordingly. 
Note  —  Vide  Parker  v.  Stephens,  and  the  note  thereto,  a^iiv  218. 


349  Haywood's  nEPOHrs, 

«»'  »''56.  Maxwell  v.  Holland. 

Mr.  McLain  hail  been  counsel  foi-  the  Defendant,  and 
after  hi^  d<rtili,'no  oiher  counsel  had  bei-n  employed,  and 
the  Defendant  hiid  removed  to  Koine  part  of  the 
World,  the  riaintiff  knew  not  where — the  IMaimiff  wished 
to  take  tiie  deposition  of  a  m.m  who  lived  in  Ne-v  E'lg- 
land.  wnd  prayed  the  couit  to  dinct  to  whom,  and  in 
wh:ii  manner  notice  of  taking  it  should  be  given,  tliere 
beiiis;  neither  party  nor  counsel  upon  whom  it  could  be 
served. 

Per  curiam — Let  notice  be  given  in  the  Fayeltcville 
Gazette  three  weeks  successively,  that  the  deposition  will 
be  t.iken  at  a  certain  place  and  <lay,  at  the  distance  of 
three  months  after  the  piiblii  aiiim.  The  HlaintiflT should 
not  lose  his  testimony,  because  the  oilier  party  hath  re- 
moved himself,  and  failed  to  ap|)oint  an  attorney  upon 
whom  notice  might  be  served. 

Anonymons. 

If  a  certiorari  be  obtained  to  rfmove  a  cause  upon  ihe  ground  that  an 
appeal  liail  bem  ittused  in  tht  court  below,  the  casi  shall  be  placed 
u|)on  the  trial  docket,  witlicjut  shewing  any  other  cuuse. 

This  suit  had  been  commenced  by  a  warrant  issued  by 
^  a  Jii>tice  of  the  Peace.  There  was  an  appeal  from  the 
^  '  judgment  of  the  Justice  to  the  County  Court,  where  a 
tri«l  by  jury  was  liad.  There  an  appt  al  was  moved  for, 
wliicli  the  County  Court  denied.  Ue  then  obtained  a 
certinrari  to  lemuve  the  |iroceedings  into  this  court,  upon 
an  .  flidavit  statins:  the  above  farts.  This  certiorari  was 
set  down  on  the  .ugiimeiii  dock<  t  in  this  court,  and  now 
the  I'laiiiiiflTin  the  certiorari,  stated  the  reasons  for  ob- 
taining it  as  above  ;  and  it  was  argued  on  his  behalf, 
that  wlierever  the  County  C<iurt  refuses  an  appeal,  where 
by  law  the  party  is  entitled  to  it,  and  moves  for  it  in 
propei  time,  and  offers  to  perform  the  requisites  for  ob- 
taining an  appeal,  and  a  certiorari  is  obtained  for  that 
cause,  the  court  here  will  grant  a  new  trial  without  in- 
quiring further  than  whether  an  appeal  was  refused — and 
as  it  is  admitted  in  the  present  case,  that  the  appeal  was 
refu-i-d,  it  is  not  incumbent  upon  the  Plaintiff  in  the  cer- 
tiorari, to  shev^  any  other  cause  in  order  to  obtain  a  new 
trill  ire.e.  And  of  this  ooiiiion  were  the  couit  clearly; 
and  the  other  side  admitting  that  an  apjieal  had  been  re- 


Haywood's  rf.pokts.  350 

I'tised.  thougli  the  pnity  |>ra\ii'S  it  (•ff.-rod  (o  assign  rca- ""y  ^''^^- 
sdiis,  &  j^ivc  sfniii'}'  for  prosecutiiij;  with  effcci,  ih^j  oi - 
dtrt'il  ilii-  raiisi'  to  be  m-i  dnwn  fu-  liial,  and  lo  he  jilrtf  ed 
amoiie;st  those  for  trial  at  tiie  next  lerm.     And  it  was 
d<nic  ;)Cco!(linj^ly. 

NoTt. —  I'iJe  Chambers  V.  S-niih,  punl  oCy6. 

Mills  V.  MrAllisler. 

since  the  ac(  of  1762,  Hev  c.  69,  ihe  coiiits  ma)'  exercise  a  discre- 
tionary powi  r  in  tlie  appointment  of  guardians. 

This  was  a  dispute  about  the  guardianship  <>f  (he  child 
of  James  J^IcMUster,  deceased.  It  <iri(^iiialed  in  the 
Ciiiiii'j'  Cdiiil  of  Brunswick,  and  came  ii|i  to  tliis  court 
by  way  of  appeal  rrom  thence.  The  guardianship 
was  applied  for  by  McAllister,  the  uncle  of  the.  infanton 
the  ffttiicr's  side,  hut  ilie  Cininty  Court  a|>pi>intf>d  Mills 
the  e;nardiaii,  who  was  no  way  connected  to  the  infant 
by  blood.  It  was  now  stated  at  the  har  and  adriiiiled, 
that  McMlister,  the  uncle,  the  present  applicant  for  the 
gnaidianshi]).  with  scleral  otiiei-s  of  the  family,  in  the 
life- time  of  the  deceased,  had  signed  a  deed  pm-porting 
to  he  a  conveyance  for  a  very  valuable  ti-act  of  land  to 
James,  the  deceased,  and  that  since  his  d''a»h,  the  ippli- 
cani  claimed  that  tract  of  land,  oi-  a  considerable  pnrt 
thi-reof.  to  his  own  use,  in  l!ie  face  of  ih.it  cnnveynnce. 
This  Cause  no"  came  on  to  be  argued  liy  Taylor  for 
Mills,  and  General  Davie  for  McAllister.  Taylor  arjrned 
that  ilie  guardi(inshi|)  ought  not  to  t)e  conuiii'tcl  htMcM- 
lister  the  uncle,  because  it  was  a  rule  of  the  ( ommon  law 
in  the  Case  of  a  letiure  in  socage,  that  any  person  lo  whom 
upon  the  death  of  the  infani,  his  inhcritauce  might  by  any 
p08sd)ility  desiend,  should  nut  be  entrusted  Ailb  tlieguar- 
dianship  of  theinlant — No  .me  who  hath  any  temptation 
to  remove  the  infant  out  of  the  way,  shall  have  the  cus- 
tody of  him.  Co.  Lit.  8",  b,  88.  a  k  b.  In  the  present 
caSe  sluHild  the  inlant  die,  the  uncle  now  applying  fop 
the  guardianship,  would  be  entitled  at  least  to  a  part  of 
the  inheritance  of  considerable  value  j.the  court  cannot 
ap|ioint  him  without  infringiirg  the  rule  just  nicntioned — 
a  rule  founded  in  so  much  prudence  th.it  the  Jutlges  have 
always  resptcicd  ir.  Also  it  may  be  with  reason 
conl'nde.d,  that  Ihe  Judges  in  this  count'y  have  it  in 
their  discretion  to  appoint  whatever  person  (hey  think 


(304) 


351 


UAYWOOl)  S  REPOH'fS. 


May  1796. n,,)^{  projier  to  art  as  guardian  fur  hii  orpli'in — the  an- 
^'"^~*''**^  ric't  ciininioii  law  diil  i<!ii'l.V  '"  ♦'•''*  fount!  \  licf'-rc  tiio 
pii-siiic;  di'  tlie  act  «('  1762,  c  5.  Out'  tenures  uoi'c  iIkmi 
SDCHgi,  but  liy  the  fifili  section  of  that  art.  either  the  Su- 
jiei'ioi- or  Inferior  Couits  wire  ein|).)Wrred  to  appoint 
guiirdiaiis  in  such  rases  where  to  themii  appeared  nercs- 
sarj,  not  savinjc  whom  iliey  slould  appoint,  and  witlioiit 
saving  they  shouhl  be  Itniind  hj  the  rule'-  of  tiie  common 
law, or  iiidred  by  any  riilcs  desij^nntingth''  per«on  to  he  a|)- 
pointed.  Iftheciiurtii  i\e  this  iliscre'ion.aisd  are  not  hound 
by  thcrnh's  tltat  i;ovei'n  in  t  In- rase  of  socage  lenur»'S,then 
thei  e  are  .strong  objecuons  against  tlie  np| ointnieni  of 
JUcMlister — heresidesontof  iheiinuisof  this  State,foiiror 
file  hundred  miles  i'rr)ni  the  estate  of  the  orpiian  ;  whereas 
Mr.  Mills  resides  in  the  nrigiihorhocid,  and  can  attend  to 
the  affaiis  of  tlie  ot-phiii'  with  rn>ii'  rouNeniencc  and 
punctuality  than  Mr.  McAllister  ;  »\lio,  should  he  be  ap- 
pointed, must  eilicr  leave  thi'  niaiiageinent  ;uid  care  of 
the  infant's  estate  to  soiniageni.  it  i  eii;l<  >  t  ilem  in  a 
great  measure:  and  niorcover,  »Vr.  McAllister  having  a 
claim  upon  par)  rif  the  estate,  and  heiotr  let  into  posses- 
sion by  his  appoinlinent.  may  imniediaiely  hold  for  him- 
self, ({luvtiting  the  profits  to  his  own  use;  and  as  the 
infant  is  now  very  young,  not  being  more  than  a  year 
old,  if  so  much,  when  he  arrives  at  age,  it  msy  be  very 
difficult  at  so  great  a  distance  of  time  to  proiurethe  pro- 
per evidences,  eidii'iof  his  title  to  the  estate,  or  of  the 
amount  of  ilic  jirofits  made  by  his  guardian.  For  these 
reasons  he  suhmiiteil,  wheilier  it  would  not  be  very  im- 
proper to  ;.ppoint  Mr.  McAlHstt'r. 

E  contra — It  was  argued  by  Gen.  Davie,  that  though 
the  rule  lespeciing  !.iiar<lianship  i  soc-ige,  was  as  laid 
down  by  Mr.  Toijlor,  that  sui  h  of  the  next  of  kin  to  whom 
the  inheritance  c 'uld  not  descend,  sho'-ld  he  the  guar- 
(505^  dian  ;  it  was  etpially  (rue  by  that  rule,  that  sui  h  person 
as'was  qualified  to  be  tip  guardian  iims'  he  next  -f  kin. 
Co.  Lilt.  88,  6  It  i.s  laid  (lown  expressly,  that  none  can 
be  guar<liaii  in  socage,  but  'lie  text  of  blood.  This  part 
of  iIm-  rule  will  at  all  events  go  the  exclusion  nf  Mr.  Mills 
— the  cniirt  are  bound  by  tl'C  rules  resjiecting  a  guardian 
in  o<  age — they  can  appoint  no  other  person  than  one 
marked  out  by  ihrm — they  were  bound  l>y  these  rules  pre- 
vious to  till  act  of  1762.  -ind  h  i  makes  no  al'eraiion  of 
the  former  laws  in  respect  of  persons  qualified  for  the 


HA.YWOOD's  REPaHTS.  352 

guardianship  ;  it  only  directs  in  srcMfral,  that  the  rnnrts  *'^''  ^^^^-  ^ 
whiMi  iKM'PSiiiry,  sliiill  a|tp  'int.  ;>  ,ii;iiardiHii,  Ir.iviti!;  'hciii 
to  he  (liiecicd  in  their  choice  hy  the  t-iilrs  of  l;iw  alip^tly 
cst:ilv|ish''d  :  and -as  ti)  the  ohji-ctioti  iais''<l  :i2:-Mnsi  .,Wr. 
McdHisler.  Ui.it  lir^  riaiins  a  (lar-t  of  (Ipc  oiphmi's  rstiite, 
wl.rii  !iic  orpliiiii  fumes  to  The  .•!;;e  of  fmirt'eii  years,  ho 
may  rail  to  accoimt  for  (he  pi'iifiw,  hs  well  as  lie  rould 
any  other  person,  and  inay  tlicn  clinse  a  new  guaniian  if 
he  shnnhl  t!  ink  pi'oper. 

Per  curiam — Guiiriiiiinsliip  in  socaijc  was  a  consi  qnence 
of  socage  leimie,  and  df|iendeiif  iipnii  thi' exi'<tenci' ^f  fliat 
tenurn  ;  w'nri-  Ih'Tr  is  no  such  tennre.  there  is  rn>  such 
gnHrdiaiisiiip.  strictly  "pcakitis!: ;  thiiu2;li  it  may  he  very 
prii;ier  to  \}:\\  some  att'-ntion  to  the  iiilc.  in  tlie  -ijiiioint- 
liient  of  j^ii-.irdians,  as  it  is  ralrnlated  tn  pi-event  the  or- 
phan ivum  fiillina;  into  hands,  where,  he  couhl  n-d  with 
safety  hi'  irnsled  In  like  manner,  as  where  the  ancesior 
died  seised  of  an  inh<ritanre  that  lay  not  in  tenure,   it  is  ' 

held  as  h  I'lih-,  that  thi-  ne'st  of  kin  to  whmii  the  inherit- 
ance CiMinit  (lesxoiid,  shniild  have  the  custody  of  him.  Co. 
IJtt.  87  b.  As  ail  onr  lands  arc  now  ulloiliiii,  the  riles 
•  ited  at  th<'  har  on  either  side,  are  not  sfi-ictly  ohligito- 
I'y  on  (lie  conrf.  Tlie  ac  i.f  (762.  conccrnina;  'he  man- 
a.2;enieiit  of  orph-.iMs  and  their  estates,  a  as  pnssed  at  a 
time  when  the  lands  of  this  cinntry  were  held  hy  socage 
tennre,  and  from  thence  that  act  may  be  supposed  to  have 
been  fnimed.  with  a  view  to  the  rules  relative  "o  i.:u:i'd- 
ianshi))  in  socas^e.  That  sii(i|)osition  will  vanish,  if  it  he  ^ 
consideied  in  how  muny  material  points  the  tcnardian- 
ship  estahlislied  liy  that  act  diffrrs  from  the  giiardi  nisliip 
in  socage — the  j^irardianship  in  socage  needed  not  tlie  ap- 
]iointoient  of  any  court:  the  person  entitled  to  Ije  ji^uar- 
diiin  was  as  precsely  marked  out  hy  law.  and  as  well  en- 
titled hy  it,  as  the  heir  at  law  himseif — where  there  were 
two  or  moi'e  in  ''(jnal  degjree  of  kindred,  to  wliom  tin'  in- 
lieritance  could  not  descend,  ihe  law  i^ave  a  rule  of  de-  (306) 
cisi  n  not  hy  sayinc;  (hey  should  apply  to  a  ccnirt  for  the 
ap|iointment  of  ihe  otK' nr  the  other,  l)nt  hj  si^ine;  that 
lie  wlio  could  first  tret  pnssession  of  the  heir  should  have 
the  gUHi'dianshij)  of  him.  Wln-u  ilie  ancestor  died  -eised 
of  lands,  piirf  of  which  dcS' ended  On  ih  urpiian's  death 
to  lelations  on  tlic  rai'nr's  side,  and  pari  to  i-.!ii(ions  on 
the  innther's  side,  m  that  case  alliiou^h  he  heir  must  fall 
into  the  iiossesaion  of  .some  person,  liahle  to  the  teinpta- 


353  Haywood's  kbports. 

May  1796.  tion  raPant  fo  be  av.'id.-d  by  the  rule,  no  court  was  called 
"'••''^''"^^  iiimii  to  .ippoiiil  i\  gii  iidiiin  not  liable  to  fjiaf  objcrtion, 
b(it  such  ol  Mil'  riPXl  of  kin  as  cmilii  first  get  p  isscssion  of 
the  hfir,  slioiild  liave  the  custody  oC  iiis  poi-son,  and  ihe 
kindred  on  oitlioc  side  init;l>t  cuter  as  pjuardiaii  on  tiie  pos- 
session of  !lie  lands  tliat  conld  not  descenil  to  them.  Co. 
Liu.  88  a  ^  6.  This  proves  that  ilie  guardian  in  socage 
dertvfd  his  a|ipoiiirin'>Mt  and  aniliority  from  the  law  im- 
mediately, wiih'nit  the  i  .terveiilioii  of  a  court;  and  he 
iniglit  enter  immediately  on  tiie  death  of  the  ancestor  up- 
on t^ie  lands  desceud'.-d  to  the  orphan,  and  also  mi,i;ht  im- 
mediately t.ike  jiossession  of  tin'  ward  :  hut  the  act  of 
1762.  mauiffsily  intended  that  no  pi'tson  shoiihl  inter- 
fere with  either,  hut  in  conseqtieiiccof  the  appointment  of 
the  County  or  S'lpcrior  Court  ;  ami  tha'  no  pi  rsoii  should 
receive  the  a|)pointmeiit,  unless  he  gave  security  as  the 
act  iequir>s — this  was  a  circuutstaiice  not  r«-(piired  in  the 
socai;!-  guai'diMi'sliip.  If  thr  act  had  inieiidcd  )hai  a  jter- 
soii  desiu;iirt(ed  b^  liw ,  sliould  be  entitled  to  the  guar- 
dianship, ii  would  have  been  useless  to  have  vested  the 
power  of  apiiiiiitiiig  him  in  the  County  or  Superior 
Court:  iheii  appointment  of  a  person  already  appniilcd 
by  law,  would  be  at  least  a  redundant,  if  not  an  absurd  act. 
The  socage  t^uardiaii  could  not  interfere  with  any  part 
oftiie  ward's  propei'ty  bin  his  lands  held  by  soca.ue  ten- 
ure, not  witli  his  copyiiold  lands  and  ihc  like — and  not 
with  any  part  of  hi->  P' rsoiial  estate;  by  this  act  he  is 
intrusted  with  the  whi»le  .-sratc  of  his  ward  of  every  kind. 
In  England  it  was  usual  foe  the  (i<dniary  to  appoint 
a  gii^i  (lian  over  the  bmly  and  personal  estate  where  there 
wa'n  til)  laiiil  held  by  soiayre  tenure.  fFoiid's Inst.  68.  L. 
Bay.  1334.  The  act  ot  1762,  consolidates  the  guardian- 
ship ot  the  body,  lands  and  personal  estate,  and  vests 
the  appoiiituieiit  of  a  proprr  goa:  dian  in  the  County  or 
Siipenoi  Court.  When  pe.  sonal  property  came  to  he 
considerable  in  E  gl.iod,  ihe  incouvenicuce  of  the  gtiar- 
diansliiji  in  socage  began  to  be  fell,  and  was  attemftted 
to  be  remedied  by  tin  act  of  12  Cur.  2,  C.  24,  allow ing 
parents  to  ap|)oini  guardians  to  iheir  children  nil  lueiiiy- 
one.  These  lestameiitaiy  guardians  did  not  lose  tiieir 
■HOT)  authority  by  the  ward's  arrival  Ij  Ihe  age  of  fonnccH 
years,  nor  cciild  th'-y  be  displaced  by  the  ward's  clmiing 
another  t;iiai(li.n>  at  lliat  age.  Tliese  weie  some  of  Ihe 
inconveniences  experienceil  under  the   fonncp  law — or- 


uaywood's  repouts.  354 

pUans  of  tlie  tender  aa;e  of  fouitecii,  i.ffpiitimps  maile  im  *'•'>'  ^''96* 
prutli'iit  clioicos  of  muardiiuis — llicsc  testaiiietitary  guard-  >"^~''~'*^ 
ians,  however,  like  others,  were  liable  to  be  removed  by 
Chanrery,  afier  the  abolition  of  the  couit  of  \vard^  in  the 
beginnini^  of  the  leigii  of  Cliarleall.  f<>i-  misbcliavirmr  in 
their  trust;  oi-for  givinu'rooui  to  suspect  tliey  were  altout 
to  iiiariy  their  wards  in  disparagemetit.  The  actof  1763 
adopts  the  9;iiiie  provisions  amongst  its  first  clauses; 
from  whence  there  is  reason  to  believe  the  Legislature 
Wire  actuated  by  the  same  motives  as  the  frnmers 
of  (he  act  of  Charles — 'he  iict  of  1762  esiilioitly  con- 
templates, that  the  guiirdiaiiship  comiiiitted  by  the 
court,  should  be  of  the  same  iluratioii  as  that  made 
by  the  appoititment  of  a  jiarent.  namely,  to  the  age  of  21  j 
for  the  I  lib.  12lb  atid  ISth  sections  give  directions  about 
preserving  the  estates  of  orphans,  and  ler.sing  out  (heir 
laniis  till  they  arrive  to  the  age  of  21.  This  net  tiierc- 
fore  cannot  have  a  regard  to  t!ie  old  law  relating  to  gtiar- 
dianshij),  but  meant  to  alter  ii  entirely — itgi\ps  the  court 
power  to  n|)j)oint  till  the  ward  came  to  age,  such  per  on 
as  they  may  think  jiroper  to  be  his  guardian,  witli  auibo- 
ritv  to  remove  him  whenever  he  misbelnvcs  in  the  trust 
\liey  have  comojitted  to  him.  This  is  a  much  more  ef- 
fectirril  mode  of  pifictiring  proper  i;uai(li:ins,  and  of  k<ep- 
ing  them  steadily  to  tin  ii-  duty,  (ban  if  the  court  were 
obliged  to  iippdint  the  next  of  km,  to  whom  the  inherit- 
ance could  not  descend,  who  in  tmmerons  inhtances  might 
be  very  unfit  persons  ;  as  the  court  have  a  (iiscre'i'ual 
power  of  chusing  the  most  proper  person,  tiiey  should 
make  their  election  of  that  person  who  can  best  attend  to 
the  afiTrtii's  of  the  orjdian,  and  whom  they  have  reason  to 
believe  will  attend  to  them  with  the  girat.st  advantage 
and  most, fidelity  to  the  orplian.  J^Lr.  McAllister  is  sta- 
ted t"  li\p  at  the  distance  of  f(nir  or  fivi' hondrd  miles,  in 
atioihei-  Slate — slionld  he  be  appointed  he  must  either  car- 
ry the  waril  with  him  to  hi'- place  of  residence,  wlieie  ihc 
c<»urt  cannot  fVom  lime  to  time  be  informed  of  his  ireat- 
-ment,  or  he  must  lea\c  the  ward  in  the  possessicm  of  s<nne 
agent,  instead  of  attending  to  the  charge  of  his  education 
iiimself :  add  to  this,  ihat  the  estate  of  the  ward  must  in 
like  inanner  be  committed  to  the  man^igement  of  an  agent,  /'aQo'v 
or  be  greatly  neglected.  Mr.  Mills  resides  on  the  spot, 
near  in  the  orphan's  estate,  and  in  tiie  county  wirie  it 
lies  :  sliould  lie  mismanage  either  with  respect  to  tba  per 

45 


355  uaywuod's  kepohvs 

May  1796.  son  or  esfnte  of  flic  ward,  iiiti-lligenre  may  immrdiatcl^ 
''■^''*''^^  l)t  ((iiivpyi'd  to  ilie  court,  and  liis  misbrhaviniir  rori-ert- 
ed.  JUr.  Mills  has  in>  prosport  of  ever  succeeding  tn  the 
ward's  esialp,  whereas  JUr.  McAllister  lias  ;  ami  tlio'  this 
is  not  a  Consideration  absidnlel}  obli,s;:itory  in  (he  court, 
thev  will  not  entirely  disrei^ard  it — though  they  may  ap- 
point whoever  they  think  most  pr(i|)ei-,  even  the  next  ot 
kin  in  the  imniediate  line  of  succession,  tliey  will  not  out 
of  prndence  do  this  wlierc  the  estate  is  large,  and  any 
other  ptrson  equally  as  well  qualified  oUVrs  or  ran  bcpro- 
cureii  to  take  tli'  guaiiliansliip  upon  himself — the  Coiii-t 
of  Chancery  in  England  always  governs  its  discretion  by 
this  ronsidcraiion.  among  others,  though  the  contrary 
was  once  avowed  in  the  case  of  an  ajtplication  by  Justice 
Dormer.  There  is  also  atnither  riicumstaiK  e  in  the  pre- 
sent case,  wliich  haih  bi-en  mentioned  ;ii  the  bar,  and  is 
not  di'iiied,  that  ought  to  have  great  wciglii — it  is  stated 
that  HJr.  McAllister  claims  part  of  this  ver}  istatc.  the 
wardship  of  w  Inrh  hi-  is  now  seeking.  It  is  saiil  inaNOid- 
ance  of  iliis  objectnin,  that  the  orphan  upon  his  airival  at 
ftmrleen  years,  ma>  chiise  another  guardian,  and  call  him 
to  account  for  ihe  profits  ;  but  il  we  appnint  Mr.  McAl- 
lister, he  will  be  entitled  lo  the  custody  of  the  e\id<iices 
of  the  Plaintiff's  title  to  this  estate — aad  shall  we  give 
the  custody  of  these  eudences  to  the  man  wliose  inlerest, 
it  is,  and  wim  is  so  much  concerned  to  sujipress  and  con- 
ceal them  ?  Sur'ly,  tlie  ctiui't  would  act  a  \<^r\  impru- 
dent part  10  do  so.  Wherefore  let  Mr.  Mills  be  appoint- 
ed— and  he  » as  appointed  accordingly,  and  gave  botnl 
and  sureties  as  tlie  act  requires. 

Note — Ttif  Ooimty  Coiirl,  in  appointing  si  gimrilian,  need  not  re- 
gard t'u-  civiicp  oftlK-  iiifiint,  although  lie  in!iyj»e  above  14  years  I'f 
sgi-.  If  untie  V.  .iluiays,  Coiif.  lieji  55  t  S  C  2  Uuy.  336  S.  C.  1 
Murpli  337  Brum's  orlihana  \  ■  Bruinsey^X  Murph  227.  Graut\\  VVlti- 
taker,  ibid.  231.     Sic  also  J^n^  v.  Jt/ir/mct,  2  Murph.  123. 

Niven  Clark  v.  Kenan  and  Hill. 

The  action  of  trover  in»y  be  siipporled  aR:iinst  executors   for  a  con. 
version  in  the  lifelime  of  their  testator. 

This     was    an  action  of  trover,    originally  brtnight 

^'ji'^^n^agains-  the  party  who  converted;   but  he  tlviog.  his    ex- 

post'362.  eciii'i  s  were  mdde  paiiies  under  the  act  of  1786,  c.  14, 

«      and  the  I'laintitf  proceeded  to   take  a  verdict  against 


uaywood's  reports. 


356 


Ihcm.  The  D<fen(Jaiit3  m<»vcd  to  arrest  judgment,  for  ^'X  1796. 
that  they  as  eteniturs,  were  not  liabli-  to  a  irrovpry  of  •^'^''"^*' 
daniaa;es  by  the  Plaintiff  for  a  conversion  in  tlie  lifiHiine 
of  their  testator,  and  of  which  lie  alune  was  guilty-  Tiny 
i-elied  upon  the  case  it(  Hamly  and  Trott  in  Cowp.  371,; 
and  insisted,  tiiat  as  this  po.nt  of  the  common  l.va  whicrh 
liad  been  so  long  doubted  of,  had  then  romp  before  the 
Court,  and  had  upon  argument  and  mature  consideration  (309) 
received  an  unanimous  decision,  it  ought  now  to  res(,  un- 
less very  substantial  reasons  could  he  given  against  the 
propriety  of  that  decisinn.  It  is  of  grout  im|)ortancc 
that  the  rule  of  law  should  br  known,  and  (hat  it  should 
be  steady  and  uniform  in  its  operation — nnci'rtaio'y  of 
a  rule  of  such  frequent  a|>plication,  is  the  parent  of  great 
confusion,  and  isof  very  great  detriment  to  the  parties  con- 
cerned in  the  application. 

E  contra — It  was  aigued  by  Mr.  Hay.  that  though  he 
was  ready  at  all  tio.es  tocontt  ihute  his  sliareof  i])pl>iuse 
to  the  great  abilities  of  Lard  Mumjield,  aotl  ihe  rest  of 
the  court  who  miide  the  decision  in  Ihecasei'f  HamlyAni 
Troll;  and  though  he  was  at  all  times  ready  to  pay  a 
proper  deference  to  the  opinions  of  so  great  a  man,  he 
yet  could  not  place  an  unbounded  conlidenre  in  tdern,  nor 
give  himself  up  to  b*'  governed  by  them;  nor  could  he 
be  brought  not  to  suspc  t.  but  that  lliesf  opinions,  like 
all  other  buinan  productions,  did  sometimes  partake  of 
human  infirmity — and  more  particularly  would  he  be  in- 
clined to  doubt  the  propriety  of  ihe  decision  in  the  case 
of  Hamly  and  Trott,  so  far  as  it  ma>  bf  atiemptcd  to  be 
applied  hei'e,  since  the  .lodges  of  this  country  havp  so 
often  had  the  case  of  Hamly  and  Trotl  under  considera- 
tioji  and  decided  against  it.  They  havedecidi-d  in  many 
instances,  tlmt  the  action  oftrii\er  is  maintaiiiMblp  against 
executors.  It  was  decided  by  Ashk  and  Williams, 
Judges,  Edenton,  April  Term,  1793,  in  the  casi-  of  Dc- 
crow  V.  Miorc's  executcns.  Tht-  same  point  was  decided 
by  AsHB.  SpENCKR  and  WiLLiVMS,  Judges,  at  Etienion 
or  Newborn,  some  time  hefoi-  this:  and  the  saniH  point 
was  decided  by  Williams.  Judgi-,  Morg-n.  September 
Term,  1791,  .WcA'mnie's  executors  v.  Olipluml's  execu- 
tors. Many  other  drcisions  to  the  sam  cHeit  Imve  taken 
place  before  the  same  Judges  in  different  parts  of  this 
country,  and  if  it  be  of  imporlanct  ihit  llu  rule  sliimld  , 
he  ste?4dy  and  uniform,  it  is  surely  far  better  to  adhere 


953  ^  UAYV'OOD-S    nEPORT«. 

May  1T96  to  these  decisimm,  wliirli  June  taken  place  in  our  own 
^"'*''"'''^^  country,  .ind   liave   been  noted  upon   >8  the  law   of  the 
cuuiitry.  fliau  novx  to  alter  the  rnli-  es'ahlisi.ed  h\    them, 
and  adopt  a  contrary  one  out  nf  mere  coni|il'-iisanre  to  the 
derisions  '  {  Lord  JUnnsfield  and  the  lest  of  the  court  of 
Kitiff's  Bench  in  England.     To  sliew  that  we  oueht  not 
to  <!(li\er  oiirsehes  up  to  (he  uutliority  of  this  drcision. 
I  vvill  tahe  thf  lihrrty    to    mention  tin'  opinion  of  Lord 
Chancellor  Harclrvicke — he  .say«,  speakiiijsj  of  a  subject 
similar  to  tli^t  now  bi  fori-  ns,  5  Mk.  7S7,  trover  may  bo 
(310)    brought  by  an  executor,  and  it  seeni^  strange  and  con- 
•  trary  to  jiistio',  ihat  tliese  action-  should  not  lie  against 

executors  as  well  as  foi-  them,  &c.  An  opinion  very 
similar  to  th.is  was  delivered  l>y  L.  C'li.  Cowper.  l  r. 
Wil  4'  7.  These  authio'itics  may  serve  to  shew,  that 
very  great  men  have  etiieriained  opinions  different  from 
thff^e  delivered  by  tin-  court  in  tin'  case  of  Handy  anil  Trott, 
and  therefore  mc  sImxiM  at  least  take  the  liberty  of  sus- 
pending a  perfect  acquiescence  in  its  propriety  (ill  we 
ha\e  collected  such  lights  as  will  enable  us  to  decide 
upon  this  subject  for  ourselves.  No  inconvenience  can 
result  from  saying  this  action  will  lie  againstexecutors.but 
cases  may  be  conceived  where  the  contrary  position  will 
defeat  injured  persons  of  justice.  Such  a  case  is  stated 
in  the  arguments  in  the  case  of  Unmltj  and  Trott.  and  is 
never  answered  ;  and  Lord  Mansfield  says,  suppose  the 
testator  had  consumed  them  and  eaten  the  sheep,  is  the 
executor  to  get  ofT  altogether  ?  Anothei-  of  the  Judges 
says,  where  goods  come  to  the  hands  of  an  executor  in 
specie,  trover  will  lie;  where  in  value,  an  action  for 
money  had  and  received — hut  I  wnidd  ask  what  remedy 
has  he  where  the  property  has  neither  come  in  specie  or 
value  to  the  executor,  as  where  the  testator  killed  the 
sheep  of  the  Plain! ilf  and  eat  them — no  value  there  came 
into  the  hands  of  the  executors — if  trovei-  will  not  lie  in 
that  case  assumpsit  will  not,  as  it  can  «rily  he  implied  in 
eases  ex  contrnctu,  or  quasi  ex  contractu.  A  conlract 
can  never  be  implied  liom  a  direct  trespass,  you  can  only 
imply  a  contraci  where  the  party  hath  leceived  value  for 
your  property — as  where  he  drives  yivur  lamb  to  market 
and  sells  it,  you  may  in  sudi  case  elect  to  consider  him 
as  doing  so  by  ymir  permission,  but  there  is  no  instance 
of  Converting  the  killing  id'  your  animal  vi  etarmis.  into  a 
Contract  lo  pay  so  much  for  him — and  so  long  as  the  an- 
cient boundaries  of  actions  shall  be  preserved,  so  long  a5< 


uaywood's  uepokts.  358 

',be  trespass  vief  urmis cauwot  beronvpi-ted  into  an  action  *'ay  '"OS. 
on  '111  r-A^v.  iipdii  iissiiuipsit,  so  Ions;  will  if  be  inipo^sililp  '^^•'~^*^ 
for  tlip  PlHintirtto  ,s;ei  any  rciliess  in  a  Cmirt'if  Lh»  fu- 
«urli  iiiju'y  h  •  I  liave  joni  nK-titioipd,  iiiiK'^s  the  action  of 
trover  may  he  su|i|iorit'd  a«jaiii''t  cxerotMrs. 

Curia  udvisari — An<l  iif'frr  tlirp<*  or  fmir  days  ronside- 
ration,  tlioj  (lrli\(-red  tlieir  opininns  flint  lliis  action  was 
maintainablr  iij^ninsi  tin'  executors,  fur  a  cunvtision  by 
thfii  tfstaloi-  in  bis  lilttinie.  Tlie  case  of  Hamly  ;;nd 
Trott  tliey  •'"id  was  eniitbd  to  mui  li  rtspn  f.  having 
been  jleterntincd  npiMi  (Irlibeiaiiiiii  by  men  of  tbi- e;rt'atest 
Talents  ;  yet  it  scennd  iipim  consi(icr:\tion  'c>  b>ave  some 
injuries  withtnil  reiln-ss  at  tlieconim<io  law.  and  piuticu-  (311") 
larly  tbe  Cituse siaied  by  the  <-onns(l.  It  is  better t;p  adhere 
to  the  deci>iins  that  liave  rninierl)  taken  pl.'C<*  here,  since 
the\  have  been  made,  and  are  fonml  lo  hi  p\ .  (im-tivc  o!' no 
incinivenience,  than  by  decidinc;  (iiflVreoily  iVnin  the  other 
Judges  to  maki'  the  rule  of  law  nnccrtain — should  these 
decisions  be  found  in  an\  future  time  to  produce  disor- 
der, liny  niay  be  allered  by  the  Li-gislaturi-,  or  by  a 
scdeii^n  Judicial  drtennination  to  (lie  icintrary.  So  there 
was  judsrmen'  lor  the  I'laintilf. 

N<iTK. —  Vide  McKivnie'i  Ex'rs.  v.  OliplianVs  Ex'n-  and  the  reier- 
•>nces  ill  the  no',  ante  4. 

~  Den  on  the  dimise  of  Andrews  x.  Mulfird. 

"Wli-  re  two  patents  or  grants  bear  date  on  the  same  day,  the  immbcr 
ortlu-  patents  or  grants  must  dfteimine  tlielv. priority.  No  pos<.  s- 
s'lor  exCL-pt  an  HCliial  one,  by  the  claimi-nl  himself,  or  his  t'-nant, 
commenced  bona  fide,  under  a  patent  or  i  rant,  :idvor!.t  and  contin- 
ued for  seven  years,  will  give  title  under  the  act  cf  limilations.— 
Wh'  II  the  act  iif  limitations  ouic  begins  to  run,  none  of  the  iinpe- 
dimenis  mentioned  in  the  act,  will  stop  its  course. 

Ejectment.  Andrerucs  had  lately  purchased  a  tract  of 
Jand  of  tlie  beiis  of  J/r.  ir«drf/e,  thf  patentee.  Mu'J'ord 
derived  his  liilcufder  Spikes,  the  paietrtit-  f.f  an  adjoin- 
ing tract.  H''  proved  tin  liftrinuiiig  of  Spikt's  tract,  and 
•very  line  and  corner  mentioned  in  the  paicnt,  and  loca- 
ted that  tract  lieyond  (htitbt.  Andrexvs  proved  tlsat  a  line 
calli'd  Waddle's  line,  was  seen  when  recently  made,  ma- 
ny years  ago,  l)y  one  of  the  wiii.rsses  on  the  r)tber  side; 
whicli  line  included  a  part  of  i!ie  land  compriseil  in  Spike's 
patent;  Hnd  'l..^  !ii  iiad  ht,-.'  irknow  l('J';t(l  i  i  o.-.vcr- 
satiuii  since,  by  Sjtikef,.     It  was  also  pro\cn,  thai'   IVad- 


359  uavwood's  reports. 

May  irS6.  dig  informed  Spikes  many  years  ago,  that  tliat  was  liin 
''"^"■^"^^  line.  Both  Spikes^  and  Ifnddle's  patents  were  tlated  on 
the  same  day — ffaddle's  v\as  numliered  with  tlie  number 
4,  and  Spikes'  with  the  number  73  :  Itut  Spikes*  survey 
was  mad'  siveral  months  before  ff^iuldle's.  Spikes  used 
this  disputed  part  of  the  land,  with  the  other  part  inchi- 
ded  within  tlie  lities  of  his  (latent,  very  soon  after  it  was 
issued,  by  keeping  his  cattle  upon  it;  and  continued  touseit 
as  a  ranjje  until  the  year  1770,  when  lie  took  actual  pos- 
session in  person.  About  the  beginnin.!;;  of  the  late  war, 
JUr.  fi'addle  moved  to  Europe,  carryine;  wiiii  liim  his  two 
Sims,  infants  of  \ery  tendei-  years,  who  returned  and 
came  of  a.c;e  within  three  yt-ars  ])revious  lo  the  brinsrin;; 
of  this-  suit,  which  wns  commenced  sometime  in  tlu'  year 
17^4.  Spikes  purchased  his  location  of  this  land  fiom  a 
man  who  had  built  an  lint,  and  lived  upon  it  S' vera! 
yeais,  intcndiof^  to  enter  it  in  the  land-office  prior  to  the 
time  of  Spikes'  entiy. 

Counsel  for  ^iidi-eics.  The  whole  of  the  preseivt  con- 
troversy may  be  reduced  lo  this — w  lietiier  Spikes'  or  Wad- 
dle's is  tlie  preierabk  title.  The  e\  idenre  jjcovc-'  that  the 
land  in  dispute  is  ir>cludrd  vvitliin  the  description  of  biilli 
patents — accordinj;  lo  the  common  plirase,  one  patent  laps 
o\er  upon  (he  olhei — the  line  as  laid  down  iti  the  plat  be- 
/■«,«>  fore  the  c<iurt,  very  probably  may  not  be  a  ti'ue  represen- 
tation of  the  liiM'  actually  i-un  ;  but  it  is  inconte^iible, 
that  there  was  a  line  run  and  marked  as  a  bomidary  of 
Waddle's  patent,  of  the  same  course  wilh  the  lim-  there 
desriibed.  It  is  equally  incontesiible,  that  this  line  iii- 
tersecied  the  boun(h<ries  oC the  <iiherp;ifent.  Itwast-een 
wiihio  'hese  boiridai'ics  by  one  of  ihe  witnesses,  who  car- 
ried ilie  clinin  in  survev ine; of  •S;j?'/cfs'  tract.  It  was  men- 
tioned to  Spikes  by  Wnddle  alterwards.  afid  described  to 
be  wiihin  iliese  boundaries  ;  and  Spikes  tjavc  as  a  rea- 
son w'ly  he  vtoiild  not  |)ld('e  his  house  m-ar  his  boundary 
line  towards  Huddle's  tract,  that  WadiUe's  line  would 
take  it  in.  it  riinuinj:;  some  distance  within  the  lines  of 
his,  Spikes'  pat<  in.  The  bescmnin,!?  pat  t  of  Waddle's  line 
that  inlersci  Is  ilie  lauds  contained  in  Spikes'  patent,  is 
a  coiniM-  pitie  called  for  in  the  jiatent — but  it  is  said,  and 
piilnps  proven  to  be  a  cormi-  of  anoiher  tract — that  is 
no  pioi  f  "t  its  not  beiiit;  hIso  a  corner  of  Waddle's  tiact. 
It  probably  is  so  from  this  ciriumstancr,  that  the  other 
line  terminatini^  at  this  corner,  is  a  marked  line  of  the 


HAYWOOD'S    UEPOUfS. 


360 


same  couisc  witli  tliat  of  Waddle's.  This  liiiP  is  said  to  May  '-'QS- 
be  coiitiiiueil  inucli  I'mthei  than  the.  leiijjiii  *)i  WaddWs '^'~'''^*^ 
line  will  ifacli.  It  is  ii.sc-h'-.s  hnwever  tit  lahor  this  |»iiiit, 
for  iC  it  he  true  that  tlu>  line  of  Waddlt's  patent,  di-^rri- 
\ie\\  as  ruiiiiiii]^  fVmn  \\ic  pine  to  \\w  •iuainp.  h''  ilii-  line 
srtMi  b}  tlie  witiipss  and  acknowh'iigod  b>  Spikes,  ii  imer- 
spfts  Spikes'  iiomitlai-ies,  and  mis  offlVoin  his  tract  al- 
most all  ilic  laud  we  liiive  Micd  for  ;  and  tiiat  it  is  the 
lin>'  of  Waddlt's  jiatciit,  is  suflicieiitly  oslahlisiiod  by  the 
evidence. 

Tin-  next  tiling  proper  to  he  considored  of,  is,  (lie  date 
of  these  two  patents,  and  such  other  circumstances  as 
may  ser\e  to  give  the  one  of  them  a  preference  to  the 
other.  'J'he  point  of  prifcience  must  he  settled  before  it 
can  be  decided,  which  of  ilie  two  litis;ants  is  entitled  to 
the  land  in  disiiiUe.  These  patents  are  botli  dated  on  ihc 
same  day — mirs  w«.s  first  numlieied,  tliousjh  tlieirs  was 
first  surveyed.  IliMetofoi'i'  piiority  of  date  in  i)atcnts  iiath 
always  been  held  in  our  conrts  to  f;;ivf  preference  of  title. 
He  who  made  the  latter  entry  and  hitter  pnyinent  of 
money, may  have  [irocmed  the  first  survey.  A  man  en- 
tilled  to  preference  in  e\ery  view  id'Jiistice,  and  who  lias 
paid  his  money,  and  made  hisenli'y,  and  haih  been  for 
some  time  perhaps  settled  upon  the  land,  and  improved 
it,  may  hnve  his  survey  postponed  to  soil  the  convenience 
of  I  In- surveyor,  and  the  survey  he  first  made  upon  the 
other's  claim,  inl'erior  in  e\e(y  respect.  The  survey  or 
any  other  proceediuy;  jirior  to  ihe,e;rant,  is  no  part  of  the  (313) 
grantee's  title — these  .-ire  only  preparatory  steps  towards 
obtainint^  tiiat  wiiicli  will  give  a  title — tlie  sjrant  is  the 
only  eviilence  of  title  that  the  law  reco.^nizes — should 
(lie  first  survey  he  made  tlie  criterion  of  preference,  it 
would  be_i;et  the  utmost  confusion — manj  ohi  grants  have 
no  plats  annexed  to  them,  and  none  were  ever  annexed 
— iliere  is  no  record  preserved  of  the  tune  when  the  sur- 
veys were  made — what  decision  shall  be  given  in  cases 
thus  ( ircumstanced  ?  Or  wiiat  merit  is  theic  in  a  claim- 
ant getting  his  land  first  surveyed,  more  tlian  there  is  in 
getting  his  grant,  the  complete  evidence  of  title,  first  per- 
fected ?  There  might  indeed  be  some  justice  in  saying, 
that  he  who  first  made  his  entry  and  paid  his  money, 
should  be  entitled  to  preference  ;  but  iu  this  there  W'luld 
be  very  great  nncei  tainty.  The  fiist entry  and  payment 
of  money,  might  he  aimed  direc;ly  .(gainst  the  claim  4)f 
a  man  who  had  settled  atid  improved,  and  who  tinder  the 


3t»l  UAiWOOU's    UBPOHTS. 

Miiy  1"9G.  oxislirig  laws  wns  enliileJ  to  a  grant  preferably  (o  any* 
'~^"^'^^-'  otiii'r.  Adil  to  lliis,  that,  their  lU'ver  lias  lipcn  iireservcd 
any  record  of  tliese  eiitiirs.  Witli<iiit  inve^tii^Uin^  ihc 
lea'foiis  iif  the  rule  orsirially,  it  will  he  siifRiient  lo  say, 
that  the  priority  of  date  in  ihe  grant,  is  the  true  rritcrion 
of  jutlging  whiihof  twn  patentees  has  the  best  title,  with- 
out regard  to  the  lime  of  any  oifier  transaction.  This 
rule  lias  liecu  so  long  and  so  fiiinly  established,  that  it  is 
known  to  every  one  to  be  the  role  which  Irith  always 
preNaih'd  in  our  courts.  It  then  the  grant  first  issued 
bo  entitled  to  iipeli'-ence,  when  there  are  two  gr-»nis  for 
the  same  land  both  dated  on  tin-  same  day,  we  iniist  ne- 
cessarily lay  hold  of  some  circumstance,  the  strongest 
thai  presents  itself  (o  turn  the  scale.  Our  grant  is  niim- 
•  bercil  v>itli  Ihe  number  4,  theirs  with  the  number  73, 
from  whence  ilu  presumpiion  is,  that  they  were  Issued 
and  legistered  by  the  Srcretaiy  in  tlie  same  order  in 
which  they  are  numhered,  and  conHe(|uentlv  that  our 
grant  was  first  pertectcd.  The  numbering  them  at  all 
can  be  intended  tor  no  other  purjiosc  than  that  of  shewing 
which  was  first  issued. 

It  will  be  argued,  that  we  ■were  never  in  actual  posses- 
sion ot  llie  land  in  question,  nor  of  any  part  of  the  tract 
of  vvliich  the  land  in  question  is  a  pari — this  must  b-  ad- 
mitted. It  will  also  be  insisted,  that  (he  poss,'ssio;i  ol 
the  person  who  made  an  ;ix-emry.  as  it  is  called,  added 
to  the  possession  which  Sj»/vfs  had  bj  his  cattle,  previrius 
to  the  time  when  he  took  .icinal  possession  in  person,  is 
sufficient  under  the  act  of  limitations  to  pertecl  iheii-  title, 
and  destroy  ours.  As  to  the  possession  oC  the  ax-en'erer. 
(314)  that  was  withmit  anj  deed  or  cidour  of  title.  Ii  Was  a 
possession  of  vacant  land,  and  all  the  right  it  coul<i  con- 
fer was  a  riglit  of  pnemprion  periiaps.  It  receives  no 
strcUKih  from  the  ,icl  of  limitations,  which  was  luxer  de- 
signed lo  operate  njion  a  possession  of  \acani  lands  ;  .md 
8U<h  rigiit  of  piecmption  was  siibji-ci  to  be  lost,  if  not 
cxerl  d  within  a  reasonable  time,  defined  by  the  existing 
law.  No  length  of  possession  could  ever  give  a  tiih-  to 
vacant  lands,  either  before  or  since  the  Revoluuon  .  be- 
cause til'-  maxim  with  respect  to  the  lands  of  tli.  KLing 
wa  ,  nnUum  tempus  occurrit:  and  iherefore  so  far  as  re- 
gards the  ad  of  !  aiil.iiions,  tlie  possession  of  the  ax-en- 
terer,  is  lobe  laid  out  of  the  consideration  of  this'case,  as 
be  .  f'.'  (ivail  uoat.soe\er.  \s  ii'  tin  p"ssessioii  which 
Spikes  had  by  his  cattle,  tlial  romiuciiced  in  the  latter 


I 


Haywood's  reports.  362 

part  of  the  year  176:«,  or  th.-  b.-gmning  of  1764,  tlicre  May  1796. 
weie  nut  full  sewn  y.-.n's  evoii  of  tliiit  (losscssion,  previ- '"^'^'"^' 
ous  to  ^Ir.  iFaddle's  deprtiiun*  to  Europe ;  and  besides 
during  itiat  'iiiie,  IFaddli  ()assed  thmugli  tiiu  land,  and 
inforiiKd  Spikes  oNiis  claim,  so  tiial  ii  was  not  a  t[uiet 
and  peaceablis  but  a  disputed  possession.  Bur  what  is  a 
more  conipk'ie  answer,  is,  that  the  keeping  of  cattle  up- 
on l.uiiis,  IS  nut  sucli  a  possession  as  the  act  ine;iut  to  ri- 
pen into  title.  Co.  Lilt.  48  b.  2  Rep.  31  b.  Such  pos- 
session cannot  be  computed  iindee  the  act  of  limitations, 
and  if  neither  the  possession  of  the  ax-entercr,  nor  ol  the 
oattle,  will  serve  tlieui,  neither  v\ill  any  surh  possi>sion 
AS  lliey  iiHve  proven  subsequent  to  these,  avail  tliiiu — 
Spikes,  and  those  claiming  u  olcr  liioi,  hail  actual  {lOwses- 
sioii  only  three  years  beJ'ofe  Mie  discontinuance  ol'ou"  Su- 
perior Coui'ls  in  the  year  1773;  and  soon  afiei  tliat  pe- 
riod,  M-.  ff^addle  went  to  Europe  and  died  there.  His 
Kon»  (lid  not  return  until  several  years  after  tlo"  war,  imt 
lamc  of  age  till  jusi  before  the  coninienienient  oi'  this  ac- 
tiop.  The  act  of  limitatioiis  expressly  jirovides,  t^iat  time 
shall  not  be  computed  under  tiiat  act,  in  favour  of  a  man 
in  possession,  and  against  him  that  is  out  of  it  and  be- 
yond seas,  till  after  eight  years;  nor  against  an  infant  , 
till  afier  three  years  from  bis  arrival  to  the  age  of  twenty 
one  years.  Uesides  lliat,  tiie  lime  <la|)scd  between  M  \rcli 
1773,  anil  t'le  first  day  of  June  1784,  is  sinick  our  i>f  the 
computation  of  lime  under  the  act  of  limitations.  Then 
all  the  time  tliai  can  be  coinputid  in  tin-  present  case,  is, 
the  time  elapsed  between  the  actual  possession,  and  tha 
time  of  Waddle's'  going  to  iMiglan  I — a  space  of  about 
tlwee  years  only.  Possession  therefore,  in  aiiy  way  in 
whicji  they  bave  proved  it,  will  avail  iliem  iioihing  ;  and  /"gi^X 
tliis  case  must  be  decided,  as  it  would  have  been  before  ^  "^ 
any  possession  commenced,  immediately  afier  the  issuing 
of  the  two  gianls.  Our  patent,  for  the  ■■easons  before 
yivcii,  IS  entitled  to  preference  and  the  ri.mitilTtorecoxer. 
E  contra — It  was  argued  hy  General  Davie  for  the  De- 
iciidants — No  doubt  can  be  entertained  bui  that  the 
land  described  in  our  patent,  is  the  s.ime  land  we  now 
flaini.  The  beginning  and  each  line  is  proven  by  tlie  chain 
( arriers  present  at  the  original  survey,  and  also  at  the 
•survey  lately  made  by  ordei-  ol  this  court  ;  but  it  is  ex- 
tremely doiibit'ul  wheie  the  I'laintiff's  land  ifa>l>  lies — 
they  have  proven  no  boginning,  nor  any  line  which  ihey 


368  Haywood's  reports. 

May  1796.  say  ig  jj,e  boundary  of  flieir  land.  They  have  indcetl 
'**^^'''*^  piovni  tliP  pxisteiicc  of  a  [liiie.  marked  as  a  connr  tree, 
but  ilip  coiiisf  of  tlic  line  from  ihnice  to  the  swamp, 
tb"Ugli  it  will  intersert  our  land,  includes  much  more 
land  ilia'i  the  line  fhry  have  attempted  to  prove.  Tho 
lint'  wliich  ihe  witness  --piaks  of,  was  a  plain  marked 
line.  Th>'  line  laid  down  in  the  plit  is  not  a  marked 
line.  There  is  not  a  single  marked  tree  in  it  or  near  it. 
It  is  very  probable  that  this  pine  is  not  a  corner  iif  Wad- 
dle's land.  The  evidence  says  it  v\a.s  a  corner  of  an  ad- 
joining iract.  If  the  course  leading  to  that  pine  be  re- 
versed, it  will  indredbe  the  course  mentioned  in  JVaddle's 
patetrt,  hut  the  e\  ideiice  say-*  it  i><  the  line  of  an  adjoining 
tract.  The  sui'vevor  says  it  was  marked  when  Ibis  ad- 
joi.iiiig  tract  was  snr\eyeil.  Still  it  may  have  been  Wad- 
dle's litie,  but  il  ilo's  not  terminate  at  any  such  corncf 
as  I  ailed  fir  in  Waddle's  patent;  and  is  continued  much 
ltty»id  the  tliHtantc  mentiimed  in  Waddle's  patent,  as 
Being  the  diitanre  of  the  line  of  that  course  in  the  patent. 
Tliese  circumstances  render  it  very  improliable,  titatjho 
lines  described  in  the  plat,  and  now  claimed  by  Andrews, 
are  reallj  th«>  houndaeies  i>f  Waddle's  land.  It  is  proba- 
ble entiu^h,  th,.t  Waddle's  laid  is  somewhere  near  to,  or 
adjtiniiiig  this  land  of  Spikes  ;  but  it  is  incumbent  upon 
them  to  show  a  better  title  than  ours  to  the  land  in  dis- 
pute. We  have  cleai  evidence  that  this  land  is  included 
within  the  boundaries  expressed  in  our  grant,  and  unless 
they  can  as  clearly  prt)ve  that  it  is  included  wilhin  theirs 
alsti.  we  shall  he  entitled  to  retain  possession — our  evi- 
dence of  title  being  not  only  equal  hut  superior  to  theirs. 
In  Khoit,  they  must  prove  the  location  of  tlieir  land,  and 
that  II  runs  o>er  t»urs,  or  they  can  never  be  entitled  to 
recuver.  The  being  able  to  raise  a  conjecture,  that  their 
(316)  boundaries  do  intersect  ours,  can  never  be  deemt^d  evi- 
dence sufficient  to  |)revail  against  the  [)ositive  proof  of 
our  title.  Uut  let  ii  be  granted  that  their  boundaries  do 
really  intersect  ours,  it  will  init  then  follow  Ihattney  arc 
entitled  to  recover.  Our  grant  is  dated  on  thi;  samedjiy 
with  theirs.  Even  admit  the  lule  to  be  in  general,  inat 
the  first  grant  gives  the  best  title,  that  rule  is  easily 
applied  where  the  grants  are  of  different  dates,  hut  it 
canimt  be  applied  to  the  case  now  before  us.  It  is  im- 
possible II.  sny  which  t)f  them  was  first  issued.  Any  rule 
whicli  pretends  to  ascertaia  this,  will  be  merely  fancifni. 


Haywood's  reports.  864 

Wp  should  depart  from  ihcsprioral  rule  wlien  it  no  longer  *'■'>  '^^6. 
etr.iblps  UK  to  (lr(  ide  with  cprtainf*,  and  we  slnoild  addpt  *'^'"^'''^-' 
somi-  ofher  tliat  is  most  likelv  to  attain  justin'-  I  kii'«w 
of  "Oin'  liitlipt  tn  establisiied  fir  a  dfcision  <»f  a  case  like 
the  prespnt.  Init  none  sfcms  so  likilv  to  pflpiiuatp  tlie 
pni'posps  ot  justice,  'S  to  say  v^licie  the  priorif.v  of  ihe 
gram  caniiot  be  ascpi-taiio'd.  ihat  th'- ,£i;riinlci' shall  be  en- 
ifitled  t'«  pifferencp.  who  first  (lurchasi'd  am'  pfiid  fcr  ilie 
land  :  and  that  his  shvill  he  ascert^'ini'd  wlc're  tin- cntry 
is  inif  til  be  had.  and  Ihe  priority  olpnymeiit  cantiot  be 
actually  lomen,  by  theprioiity  o(  snr  cj.  The  first  sur- 
vey itself  forms  snnie  reason  oj'  ''refer  ucv  iiidftpendi  iit  of 
any  otln-r  co'  -idcration  in  fH^^^r^)f  the  cbiiniHot  und-r  it 
— he  first  niakes  th'- appripi'iaiion  'f  tliat  pariiciila'  •  pot 
to  hinist-lf — !if  ai.ikes  tliat  apprnpi  iaiion  niitm  ions,  hy 
goinjif  upon  llie  la-id  and  '•ervi-yinK  it,  and  separa  iug  it 
from  the  cirfumjacent  lands  by  visible  houndaiirs, — 
These  act."  make  kmiwn  t^*  the  rest  of  mankind  that  he 
bath  taken  that  soot  for  bims  If  It  is  unjust  for  aijjl 
other  to  invade  thai  riglit  afterwards,  and  de|  ri\e  liiinof 
it  either  by  force  or  contiivance.  Thesp  ciinsideraiions 
have  considerable  weight  in  a  case  circumstanced  as  the 
present  is.  Where  tiie  ordinaiy  rule  of  d'  ri>-ion  is  found 
to  be  incompetent,  the  rule  ))roposed.  i:(  ^muii;  prefer- 
ence to  the  grant  first  nnmb>red,  is  too  vague.  It  is 
impossible  to  say  whether  the  grant  first  issued  was  that 
which  was  first  numbered  or  legistered,  or  whctlier  the 
numbering  takes  place  upon  the  execution  of  the  grant, 
or  after  the  execution  when  the  Secretary  registers  if  in 
his  office.  If  for  these  reasons,  or  any  other,  our  grant 
is  to  be  preferred,  the  Plaintiffs  have  no  title — but  if  this 
point  be  against  us,  our  possession  has  made  us  a  title ; 
the  ax-cntpi'cr  was  in  possession  five  or  six  years,  then 
Spikes  purchasetl  the  location  from  him,  and  put  in  his 
cattle,  and  continued  that  possession  till  he  began  to 
clear  and  cultivate  the  land.  This  possession  was  pre- 
vious to  what  they  call  the  actual  possession  of  Spikes,  (^I'j^ 
upwards  of  seven  years,  from  1757  or  1756  to  1770^ 
nearly  fourteen  jears  ;  aod  by  the  act  of  limitations, 
seven  jears  ()ossession  will  give  title  to  the  possessor. 

Per  curium — Haywood  (oily  present — Will  it  not  be 
projjcr  to  consider,  wheihcr  if  the  act  of  liinitaiions  be- 
gan to  run  IV'im  the  time  actual  possession  vvhs  taken, 
(wlii(  h  is  stilted  to  have  brcii  in  the  lifetime  nf  Mr.  ff 'ad- 
dle, the  patentee,  and  about  three  years  before  ho  went 


365  haywood's  iiEPonTs. 

Ma>  1796.(0  Europp)  i(«  oi)rratii)n  can  be  siispeiuled  by  Iiis  going 
'*^'"*''^^  bcN '111(1  sea,  op  by  bis  dejiHi,  |pa\iiig  iiifan*  heirs. 

Counsel  for  the  PlaintiflT — General  Davie  aii'J  myself 
Jiave  formei'ly  coiisidei'cd  ot  thai  qiicstii)ii.  It  in  a  rule 
adopti'ij  otil>  ill  tlie  case  'if  fiiien  in  England — it  d(ies  not 
appl>  '"  the  artof  limitali'iiis. 

Per  curiam — Tlie  rourt  thinks  it  is  equally  applicable 
in  <rtses  siibjrrt  to  the  act  (iflimitaiioiiM.  There  are  ma- 
ny authorities  to  tiiat  eflRct,  anil  the  reason  of  the  thing 
Btroi(j2;ly  '^iipporis  that  poniiion.  Thf  rouri  will  infoi'in 
the  Jury  that  is  the  law — if  they  should  find  accordingly, 
and  you  shall  be  of  opinion,  upon  further  considecHtion, 
that  the  law  is  not  so,  a  new  trial  may  be  moved  for,  and 
the  court  will  hear  this  point  more  deliberately  argued. 
The  counsel  on  both  sides  assented  to  this  proposition. 

Per  airiam — The  first  point  in  order  to  be  considered, 
is,  uliether  the  land  in  dispute  be  inclutled  within  the 
boundaries  of  Waddle^s  patent.  If  it  be,  then  other  p>iints 
Will  arise  to  be  eonsideied  ;  if  it  be  not,  then  theclisputo 
is  at  an  end.  There  is  full  proof  that  the  land  claimed, 
is  \\ithin  the  boundaries  of  ih<-  patent  under  uliich  the 
Defendant  claims.  This  is  not  doubled  by  any  one — it 
is  not  "disputed  by  the  Plainiiff.  For  them  to  recover,  itis 
necessary  to  show  a  title  Kupeiior  to  tliat  of  the  Defendant 
— iheir  patent  is  for  land  lying  on  the  same  streani,  very 
probably  for  a  pari  of  the  land  in  dispute — one  of  the 
chain  caiiiers  in  making  Spikes's  survey  some  weeks  af- 
ter, saw  and  shewed  to  Spikes  a  line  then  recently  mark- 
ed, running  through  the  land  contained  in  Spikes' [mWnt ; 
and  as  he  describes  it,  must  have  run  somewhere  between 
the  boundary  of  Spikes'.s  patent  and  the  line  now  descri- 
bed in  the  plat,  and  claimed  to  by  the  FhiintifTs-tbat  line 
has  been  since  spoken  of,  and  admitted  in  conversation  by 
the  Defendant.  When  Spikes  sold,  he  refused  to  war- 
rant the  land  in  ilispute,  because  nf  Waddle's  <  laim. 

The  court  then  enumerated  tlic  otiier  circumstance  gi- 
ven, in  evidencp  relative  to  the  coiner  pine,  and  the  other 
(318)  line  spoken  of  at  the  bar — and  concluded  this  point  by  say- 
ing, it  is  not  the  province  of  the  court  to  drai^  any  con- 
clusions with  respect  to  this  line,  whether  it  existed,  or 
wheie  it  is.  Such  conclusiims  can  only  be  drawn  by  the 
jury.  The  court  oniv  recapitulates  the  e>  ideiice  in  the 
presence  of  the  counsel,  to  assist  the  memory  of  thejnry, 
not  for  the  purpose  of  directing  them  to  lay  stress  upon 


UAVWOODS    RTPOTITS. 


366 


this  or  that  part  <.f  'he  testitnonv.  Shoultl  the  court  (].'-  "'y  i- -">• 
lixi-r  Hti  "iiiiiiiiii  with  ic-pirt  'o  the  pvidence,  the  j'"')'^*'"^^^ 
ar<'  oi'ly  buitud  by  it,  should  th^it  ^>piiiiiin  roiurirlr  \\ith 
thfii-  «i\Mi,  (li'invii  ffoii)  tlir  pvi«leiire  they  have  JH-anl — 
Bh'iMid  tlie  jury  howpvt>r.  in  the  fii-psi'iit  case  belies f.  'hat 
(■raddle's  piitent  rovei*ed  the  ImhIh  in  slispu'e^  then  the 
nesi  circuiti'.iHnce  to  he  rmi-idered  is,  «hich  of  thes'' twit 
patents  is  eniiili'it  to  ])fef'Tence — tlv'v  iii'e  hoth  drtted  on 
the  same  day,  ff'addWs  is  iiiiiiihcrcd  witli  the  imnihiT  4, 
and  Spikex's  with  the  miniher  71  ;  hut  SpiUes'  survej- 
was  nuili-  several  mouths  before  rTadd^e's.  The  rule, 
that  hath  hitlieito  prevailed  is,  that  the  patent  or  grant 
of  the  first  date  shall  he  preferred.  There  is  no  other 
evidence  of  title  b\  ajipi  cipriation  of  Jands.  but  that  of  the 
ii^ratii.  He  tt  ho  first  obtains  his  t^rrttit  without  fivtud,  ob- 
tains title  :  and  (rum  that  moment  inny  exc'iide  all  otiiers 
from  »!ie  possession.  We  cannot  bo  i'lflnennd  in  dr.te4"-- 
minin?  a  point  of  preference,  by  the  first  survey  or  the 
first  entry,  oi'  the  first  payment  of  money  for  the  land-i|» 
any  of  these  circtiinsiances,  or  all  of  them  together,  make 
Jio  title — if  the  grant  does  not  follow,  they  sif'uify  no- 
thinj;; — and  whi-n  it  does  follow,  they  reasf  from  the  mo- 
ment oC  its  execution  to  be  of  any  co'i'-idt-ration — tliat 
and  that  only,  creates  the  title  ;  and  that  only  is  to  be 
consulted  where  t!ie  question  of  title  arisi-s  between  dif- 
ferent chiiniatits.  Siip])iisinj;  this  rule  not  to  have  been 
fonndi'd  upon  propriety  at  first,"it  wr>uld  be  aMen<led  with 
terrihlf  ctfiiseqnetices  to  alter  or  itTipair  the  force  of  it  at 
this  day — rules  ■>!  propeiiy  where  they  iiavc  once  become 
fixed  anil  known,  and  to  be  generally  acted  under,  simuld 
never  he  l)rnkeii  iu  iijon,  but  for  reasons  of  the  most  ur- 
gent'necessity,  and  then  only  by  the  Legislature.  In 
-  such  instances,  it  is  of  murh  more  consequence  that  the 
rule  should  be  certain  ami  notorinus,  than  that  it  should 
be  coof  iiniahle  to  strict'  notions  of  justice.  Siionld  we 
decide  by  prel'eri  ing  the  grar.lre  who  had  iiis  land  first 
sur\e\e(l,  it  uiiajhi  periiaps  serve  the  purposes  of  a  deci- 
sion well  enoujrh  in  the  present  iustaui-e  ;  yet  many  ca- 
^  mi{;lit  occur,  where  the  fait  of  the  first  survey  coolij  ^  .  _.. 
no!  be  ascertained;  as  in  the  case  of  old  grants  issued  v^^^/ 
before  the  jtracticc  of  amtexing  plats  began,  and  in  cases 
of  new  grants,  whei'c  the  plat  annexed  to  either  of  them 
Was  serered  Iron)  tiiC  grant  auil  lost.  In  all  such  instan* 
ces,  it  would  be  urcesv.iij  to  ad'pt  aiioitier  nilc  of  deci- 
sion.    It  is  better  t  >  follow  one  ih^t  will  answer  for  t!ic 


36^ 


UAYUeOD  S  REPOIi'BS. 


May  I"S6.  jppigjoi,  ^f  g]]  pascs  wliirh  msiy  'irisi- — by  adlieiitig  to  the 
^'^'"*'"^^  (lid  iiilp  orpioleiriiifj  tlie'_a;iatit  fi's<  ppi-ferii-d  ;  mid  «lien 
tlu'>  ai'C  dateil  oil  tlu'  sainc  day,  'if 'irffciriiis  iliat  j^i-int, 
which  from  some  circiinistance!-  apfiarptit  on  tlic  fare  of  ttio 
deed,  may  appear  t\tv  best  eniiilid  to  it  In  "he  p>e*oiit 
case,  it  ajipcais  in  the  fan-  of  /F«d(i/e's  patent,  that  it 
was  ■tiiimlnTcd  with  tin'  niiinbi'i  4.  whereas  SpjA'es'  was 
limnbei'ed  witii  the  numher  73  :  fimii  whciire  the  strong; 
presiimiitidii  is,  tii.it  JTaddle's  ,i;i  imt  was  first  fiiiii(ili''ed, 
and  ihnt  it  WHS  iiuiiibeied  in  the  saiiie  (irdcr  witii  res|iect 
to  the  (iihi'i  deed,  in  «liich  tlicv  were  severally  cnmplet- 
ed  ;  and  if  any  oilier  ciiTninstame  of  eqiMl  wiipjht, 
should  rt|i|ieai' ill  the  lace  <»f  the  grant,  it  should  ha\e  equal 
infloeoce  in  d  riding:  th>  (uefereuee.  It  Waddle's  grant 
be  entitled  to  priTereiKe,  tlieii  it  v>ill  beneeessai)  I'l  ron- 
sider,  whether  Spikes  or  ihos.-  <'Uiiiiin'^  under  iiiui,  have 
acquit  id  a  title  liy  possi-ssion  uiiili  i  i!ie  act  of  liiniialions. 
It  is  urged  tliiit  llif-  |iiisse->sir)ii  of  the  iix-enteter,  as  be  is 
CItlled,  ofwiioin  Spikes  (lurchasrd  the  lucatioD.  is  tn  be 
taken  into  compuiaiiun  :  and  next,  that  the  [lossession 
which  Spikes  had  by  his  cattle,  is  to  be  rerlinied.  We 
will  consider  them,  separalel>,  and  for  'hat  purpose  it  is 
proper  to  state  biiefly,  the  true  im|>«iil  anil  intent  of  the 
act  of  limitations,  so  far  as  it  re.irKids  ihe  landed  estates 
of  the  cotintiT.  That  act  bad  tv^o  nbjeris  in  view — the 
one  and  principal  object  was,  to  fix  upon  a  mode  of  set- 
tling disputes  between  uift'ercnt  claimants  uf  the  same 
lands  under  different  grants  or  titles. 

The  Legislature  consuiered,  where  one  «if  the  cluiin- 
ants  settled  njion  the  land,  and  continued  on  it  seven 
years,  with  the  reasonable  expectation  of  enjoying  it  in 
fee,  that  his  deed  or  grant  gave  him,  that  it  was  more 
agreeable  to  justice  and  the  policy  of  an  infant  cuinti'y 
that  wanted  seitleis,  to  confirm  Ihe  title  of  such  a  (lossses- 
sur,  than  to  sufter  him  to  be  turned  out  of  possession  by 
another,  who  had  no  otln'r  merit  than  that  his  grant  wag 
first  dated.  The  Icrm  of  sex  en  years  was  fixed  upon  by 
the  Legislature  for  that  purpose.  A  prior  patentee  who 
would  not  enter,  during  the  space  of  seven  years,  when 
the  subsequeni  patentei ,  and  those  claiming  under  hini, 
(380)  were  in  the  adual  |)ossession,  giving  open  and  jiublic  no- 
tice (if  his  claim,  was  by  that  law  deprivi'd  of  i  is  liile  for- 
e\i>.  He  shall  iMii  take '•(Kantage  of  an  industrious  set- 
tler and  tui  11  him  off,  after  he  has  improved  the  land  for 


H.\YW00d's  REP9RTS.  368 

seven  years  toa;etlicr  :  but  thtn  in  order  to  sjain  a  title  May  179» 
by  |)i)sscssi()n  under  this  act,  these  circumstances  must 
concur — he  must  be  possessed  of  land  whicli  hatli  been  ac- 
tually granti'd  ;  iv  possrssinti  .if  \  iicu'it  lands  will  not  do, 
nnh'ss  atreiidcd  with  siirh  circnnistiiticcs  as  I'l-quired  by 
the  late  act  of  Assembly,  for  limiting  the  claim  of  the 
Slate — !.(>  must  taki"  jiossi'ssion  «ith  a  belief  that  the  land 
possi'ssed  is  his  own,  as  under  a  patent  or  <leed,  under 
somi-  patentee — he  must  take  possession  with  such  circum- 
stances as  are  capiblo  in  their  nature,  of  notifying  to 
muni^ind  that  he  is  upon  the  land,  claiming  it  as  iiis  own, 
as  in  person  or  h>'  his  tenant — this  notorious  possi  ssion 
must  be  a  continued  possession  a  secret  taking  posses- 
sion and  not  continuing  it,  as  it  cannot  answer  the^puf- 
pose  of  noforieiy  to  adxerse  claimants,  cmnot  extiiiguisli 
their  claim  for  not  having  been  put  in,  in  due  time. — 
The  other  object  of  the  act  was,  to  quiet  the  posses- 
sions of  such  persons  as  before  the  pa-ising  of  it  had  taken 
jiregiilar  conveyances,  not  strictly  su|)portab!e  by  law; 
but  >et  fair,  and  for  valuable  considerations.  This  is 
provided  for  by  Uie  first  clause  of  the  act,  and  need  not 
be  enlarged  upon  now.  The  case  before  the  court  is  no 
way  affecleil  by  it.  T<»  apjjly  these  rules  to  the  present 
case — the  possession  of  the  ax-eiiterer  was  of  vacant  ami 
unappropriated  lands,  and  is  not  a  possession  within  the 
purview  of  the  act.  Such  possession  could  operate,  if  at 
all,  only  against  the  King  or  i!ie  liords  Proprietin's,  not 
as  the  act  meant,  against  another  individual  claiming 
under  them  by  another  grant  or  deed.  It  is  not  the  pos- 
se!^sioll  of  a  settler,  having  a  belief  that  the  land  he  set- 
tled upon  was  his  own.  As  to  tlie  possession  whicli 
Spikes  kept  by  his  cattle,  that  is  not  such  a  possession 
as  is  calculated  to  give  notice  to  the  adverse  claim- 
ant, that  his  land  is  occupied  and  claimed  by  ano- 
ther. Cattle  may  be  a  long  time  ranging  upon  land, 
without  its  being  publicly  known  whose  they  are,  or  that 
they  were  put  upon  the  land  by  their  owner,  or  that  he 
meant  to  ( laim  it  :  but  if  a  man  settles  upoii  the  land  by 
himself  or  teuiUits,  and  continues  that  possession,  builds 
a  house,  or  clears  the  land  and  cultivates  it,  his  claim 
then  becomes  notorious,  and  gives  fair  notice  to  the  ad- 
verse claimant  to  look  to  his  tile.  As  to  the  cireumstance 
of  Spikes  having  onee  taken  possession  of  the  land,  and 
continuing  there  some  time,  and  then  leaving  it  again>^ 


S69  HAYWOOU'S    RKP0R'K5. 

Mny  1796.  a  single  act  of  takincj  pnsspssioii,  and  then  Iravincf  the 
^'^~'''''**^  laiul  aiil  not  do  ;  tor  then  every  man  who  ha.s  aj)-.ti>ntop 
(321)  deed  for  land,  and  lives  at  a  distance  from  it,  is  in  dan- 
e;cv  of  losing  his  title  hy  some  othrr  per>ion  iiaving  a  co- 
lour of  title,  making  a  seci'et  eniry  njion  ii,  and  at  the 
cx|)iratn)n  of  sewn  yeai'H  aftervvaiilH,  setting  up  that  pos- 
session as  a  title.  Were  (his  the  law,  no  man  would 
evei-  be  serure  of  lii«  tiiie  for  lands  he  did  not  actually 
reside  upon,  either  hy  liiiii--elt',  his  tenant  or  agent.  Tlie 
po.sses>ion  that  is  capahle  of  ripening  ifitotiiK?,  must  be  no- 
torious, and  cuiitiniird  for  seven  years  « iiliout  ciitry,claini 
or  aclioM  on  llie  other  side.  As  to  the  remaining  posses- 
sion th.it  Spikesir.ul — il  is  stated  tliat  about  the  hiiginning 
of  the  year  1770,  or  ihereab.mts,  .S;)(A'€S,  or  the  person 
that  clainx'd  under  liiin,  took  arlnai  possession  of  the. 
iarnl  in  (|nesiii)n,  built  a  house  upon  ii,  clt^ared  »  fteld, 
and  ciintitnied  the  possession  down  to  the  present  day  ; 
and  I  hat  oil  tiic  oth>  )■  side,  If'uddlf  had  no  actual  posses- 
sion of  the  land  ioclnded  in  his  paieiit,  or  of  any  paft  of 
it;  and  ihal  he  was  in  this  coumry  when  the  adverse 
actual  possession  commenced,  and  Inr  fmr  or  (ive  years 
afterwards,  wlien  he  removed  to  Europe.  It  is  hero 
propel-  to  observe,  that  from  the  .sixth  day  of  March, 
1773,  to  111.'  first  day  of  June,  in  the  year  17B4,  thcuhole 
intervening  time  is  struck  oui  of  the  coinpulatinn  of  time 
under  the  »(•!  of  liniitatiiiiis.  b>  ditrcrent  acts  of  the  Lc- 
gi*tlatiire  made  in  the  time  of  the  war  and  sincei  and  is 
not  lo  be  regarded  :  and  while  a  man  is  beyond  seas 
when  his  title  accrues,  and  is  of  full  age,  he  is  allowed 
eight  years  to  put  in  his  claim  against  an  adverse  occu- 
pant. In  the  present  Ci'.se,  Jtr  H'tiddLe  was  in  this  coun- 
try when  the  act  of  liinitations  first  began  to  run  upon 
him,  that  h  to  say,  when  actual  possession  was  first 
taken  and  continui'd  by  thead<erse  claimant;  and  Mr. 
Waddle  resided  here  for  some  years  afterwards,  and  un- 
til afti-r  the  discontinuance  of  our  Superior  Couris  in  the 
year  177S,  so  that  at  the  time  he  went  to  Europe,  the 
act  hail  run  upon  hjm  tliree  }ears;  mid  if  we  connect 
the  sixth  of  March,  1773,  with  the  6rst  ol  June,  1784, 
excluding  the  internieiliate  time,  and  compute  on  till  the 
time  of  commencing  this  action,  whicii  was  some  tune  in 
the  year  1794.  there  will  be  a  space  of  computable  tune 
of  ihiiteen  )eais  and  iinire,  between  the  fii^L  taking  of 
actual  possession  and  the  coinnieiiceinent  of  this  action. 


haywood'b  heports.  370 

It  is  urged  liowover,  that  tliere  are  two  rirciimstairces  to  May  1796' 
intenupl  the  r-uiiinu;  on  of  tliiH  time,  WuddWs  bi'iiig  be- ^-^■'*''"*^ 
yond  MPa,  and  then  his  death,  and  tlh"  infancy  of  Im  sons 
to  a  pei-iod  within  thiee  years  before  the  comineniemeiit  (322) 
of  this  ai  tion.  Tiicsi'  circiimstancis  will  tiot  hindei-the 
riiniiine;  on  of  the  statule,  when  it  has  once  bes^on  to  run. 
The  act  of  limitations  re^aids  tlie  interest  of  both  jiar- 
ties — it  provides  the  term  of  seven  years  to  the  end,  the 
Plaintiff's  ( laiin  he  not  destroyed  by  too  stiort  a  time  j 
for  the  Safety  of  the  possessor,  it  provides  that  liis  pos- 
session sliall  not  he  distuibed  after  Ke.vcn  ye.>i.s,  unless 
there  are  strooe;  reasons  founded  in  justice  to  the  contra- 
ry, and  the-e  are  pointed  out  iii  the  exceptions  it  makes 
to  tiie  tfener.il  rule  established  iiy  l!<e  act,  as  coverture, 
&c.  &!•.  bill  these  provisions  would  be  ensily  frustrated,  if 
a  Ulan  afte-Mlie  .ictiiasrun  upon  him  aliiKist  the  whole  se- 
ven yeacs,  could  defeat  its  oiieriitiun  by  going  beyond  seaj 
and  the  act  would  have  but  little  effect  towiuds  quieting 
titles  and  possessions,  if  after  a  man  had  been  improving 
and  cullivntins  the  lands  lor  almnst  seven  years,  that 
possessi'iii  would  bi-  all  rendered  iiu.^Mtory  by  (lie  ib^atli 
of  the  adverse  ciaiuiaiit,  or  by  Cdveiture,  iinprisonirietit 
or  the  like,  before  the  time  had  been  actually  completed. 
We  m:iy  easily  suppose  a  <  ase,  where  the  act  <»f  limita- 
tions would  not  be  of  any  assisianc  at  all  to  a  p(»ssfssor 
as  the  Legislature  iiitende'l  it  sh mid  be — a  man  improves 
land  and  settles  iip<ni  it.  and  continues  tlie  possessioii  for 
seven  years,  lacking  a  few  days — the  iid\trse  claimant 
dies,  liis  heir  but  Just  born,  but  a  few  day<  befoi-e  his  ar- 
rival to  the  age  of  twenty-four  (for  inf.nts  liavt-  three 
yc.Kis  alloweil  them  alter  their  infancy)  dies,  li-avimr  his 
heir  butjust  born  also — h<r'-,  contrary  to  the  plain  lucan- 
iiig  of  the  act,  the  possessor  could  not  actpiire  a  litle  af- 
ter 54  or  55  years  continued  possession.  As  such  cases 
must  ti(qu(iiiiy  liappiii,  thi-  law  will  not  allow  itself  to 
be  defeated  by  making  such  use  of  its  excejitioiis.  The 
tomputatimi  of  time  shall  not  be  susjiended  by  the  occur- 
rence uf  any  of  these  circumstances  whit  h  would  have 
prevented  its  attaching,  had  the  title  of  the  parly  out  of 
possession  accrued  iluriiig  the  time  of  their  existence,  as 
infancy,  imprisoniitent.  &.c.  but  whe.e  tlje  title  comes  to 
persoijs  u!idir  such  incapai  itles,  and  that  title  is  already 
worn  a\Vrt>  b)  the  attri:iiMi  of  several  years  time,  with, 
the  quality  of  still  wearing  away,  they  must  take  it  aa 

47 


S71  Haywood's  ueports. 

M^y  1796  (h..y  find  it,  with  its  disudvaiitagcs  as  well  as  witli  its 
*>"^''''''^'  ad\  Miitat;cs,  and  iiitist  use  the  same  diligence  to  prevont 
a  total  dissoliiiiiiti  of  title,  as  the  ancestor  or  iicisoii  from 
whoiu  iht-y  (.li)iin  was  bound  to  use — and  if  this  reason- 
ing will  apply  to  the  cases  of  these  iiersons  whose  lia|>le^9 
situation  is  not  Uroiight  on  by  their  own  niciiivs,  as  infants, 
(5i5)  persons  insane  and  the  like,  much  more  will  it  apply  to 
the  cases  of  those  v\ho  seem  to  act,  as  if  they  int'-nded  to 
avoid  the  operation  of  the  act,  as  a  person  imprisoned, 
lie  that  rcmo>es  bryond  sea,  or  as  a  woman  that  marries 
after  the  sicf  be_u;ins  to  attach.  'I'liese  voluntary  acts  of 
theirs,  ought  not  in  reason  to  defeat  the  possessor  of  the 
benefits  intended  for  him.  by  the  law  of  the  country. — 
The  conclusions  resulting  from  this  mode  of  considering 
the  subject  are,  that  the  title  of  the  Plaintiff  in  the  pre- 
sent case,  is  barred  by  the  Drfendant'H  possession — 
There  was  a  verdict  atid  Judgment  for  the  Defendant  ac- 
cordingly, and  the  tnotion  {<n-  a  new  trial  was  not  made. 

Vide  .' Eq.  Ca.  Ahr  9.     2  P.  Wil.  582.     1  IVih.   134 

P/oKt»,  368  ^0  372.  Sim.  55i3.  3  Bac.  M  655.  L,  Ray. 
289.  Cii.  Lilt.  246  «.  259  «.  8  Hep  100  b.  Lilt  441, 
Cr.i.  Jac.  101.  4  Term  Rep.  310.  Shep.  Toiick.  30.  4 
Term  306,  in  a  note.     2  .ilk.  533.     Co.  LitU  353  b. 

NoTK  —  I  he  posilKPii  tlint  llie  number  of  llie  paieiits  or  grants,  when 
Ihey  bear  iLite  on  the  same  day,  m.iy  be  considT'-d  in  .(scerlaining 
Ih'ir  priority,  sc'rms  to  li  ive  been  double' i  ot  by  WiLLiiMs,  .fudge,  iu 
Fere.man  V.  Ti/son,  post  496,  ihou.^h  Judge  IIatwood  still  continued 
of  tliK  opinion  ilial  the  number  sliould  have  some  w-ight  in  the  ab- 
sence of  tlier  evidence  uf  prinriiy.  Tins  opinion  ofllATwmD,  »p- 
•  pears  to  Mhvi-  been  approved  of  in  Ridilkk  ii  IVife  v.  Legg-et,  3  Jiur. 

o39.  though  in  lliat  case,  the  grant  ot  the  lowest  nninher  was  made  to 
yitlii  to  ;.  strong  circumstance  agninst  it,  lowit,  that  the  grint  lalled 
for  th(_  la  (Is  me.  tioned  in  tlie  otlitr  grant.  Upon  the  qu'-slion,  what 
kind  .1  p.i-srssioo  is  necessary  togive  title  under  the  act  ot  Inii'alions, 
see  the  not.  to  Slrudwtckv.  Shaw,  ante  5,  and  the  lases  tlitte  reter- 
reO  t.  :  <nd  p;irticul-rl>',  .nlOi.  cnniini-ncmenl  of  tile  possession 
beii.g  bonajiile,  sei  Hiddick  SJ  Wife  v.  Ltggct  cited  above,  mid  Me- 
Itte's  heirs  y.  Alexaniier,  3  Hawks  o22.  I'hai  whei-e  th.  stjlule  .  f  It- 
niil«tii-n>  once  b.  gi.s  t.i  run,  noii.iiig  will  imp'  de  its  pro.rfss,  is  now 
tt<|i  fiftfled  Sec  .imnymous.  post  416.  Cobhant  v.  NUl's  Exr's.  " 
Hay.  5      Pearce  et  al.  v.  House,  N.  C.  Term  Hep.  305. 

Den  on  the  Demise  of  Henry  Young  t?.  James  Erwin. 

Where  the  demis'^  in  an  ejiciment  is  about  to  exiiire  before  a  tria 
ca  I  be  had,  the  Plaintifi' will  be  permitted  to  amend,  by  extending 
the  term. 
/ 

Ejei'tment,  brought  several  years  ago,  and  hath  de 
pcntied  so  long  that  the  demise  laid  in  thctleclaratinn  will 


haywoob's  beports.  372 

cxi)ire  before  the  next  term,  there  bt'iitpf  a  continuance  at^iy  1796. 
this.  Mr.  Taylor  \wneA  a  lew  days  a.^o,  on  the  r-duit  ^^'^'"^^ 
gianiin}!;  the  (■.iiiinuance,  to  be  at  libi-iiy  to  enlarge  the 
demise,  so  as  to  extend  it  beyond  the  next  ter^m,  oriothe 
time  when  a  trial  will  |)riil)al)ly  be  h;i(l ;  and  lin-  court 
were  about  to  allow  the  motion,  when  the  coiinsel  for  'he 
Del'endarit  insisted,  that  the  enlargement  mo\eil  for 
could  not  be  admitted,  and  prayed  time  lor  a  few  days, 
to  prc])are  himself  to  shew  it.  WlicreMpun  the  court  de- 
layed a  decision  iip'in  the  motion  for  a  few  d  lys.  and 
now  on  the  day  a|)poinfed  for  the  further  coiisiileriUion 
of  Ji/r.  Trtj//or's  milion,  the  counsel,  ./Voore,  for  tin*  De- 
fendant shewed  cause  against  it. 

Tiie  Judges  in  every  free  country  are  boi)nd  to  decide 
according  to  the  cstahlislied  law — they  cannot  uiake  pre- 
cedents where  tlic  seeming  hardship  of  a  case  maj'  ap« 
pear  to  tliem  to  require  it.  Their  otfice  is  to  <lcclare 
what  is  the  existing  law,  nut  to  say  what  it  shaM  he  in 
any  pariicular  case.  Had  they  such  a  power,  theif  dis- 
cretion would  be  tlie  govri'ning  principle,  and  the  people 
slaves  to  tlieir  capiices.  The  laws  of  this  coiinii-y  con- 
.si^t,  partly  of  statutes  made  before  ttie  settlement  of  it, 
partly  of  what  is  called  the  common  law,  and  partly  of 
our  own  acts  of  Assembly.  This  common  law  is  kept 
in  remembrance,  by  the  memorials  of  former  decisions 
handed  down  to  us  in  the  form  of  reports,  anil  they  are  (324) 
the  prccedimts  for  future  decisions — so  far  as  they  ascr- 
tain  what  the  common  law  is  in  any  given  case,  so  far 
are  the  Judges  authorised  to  say  what  it  is  in  that  case; 
but  tiny  have  no  power  to  frame  a  new  rule  eithci-  against 
the  former  precedents,  or  witliout  a  precedent.  The  at- 
tention of  the  Legislature  was  drawn  to  the  laws  that 
were  fit  to  be  ailo|)ted  here  very  soon  after  the  formation 
of  our  present  State  Constiiution,  and  they  decliied  by 
tlie  aci  of  1778.  c.  5,  that  all  such  statutes  and  such  parts 
of  the  c(nnmon  law  as  were  iiei'etofore  in  use  witliio  tnis 
territory,  and  all  the  acts  of  the  late  General  Assemblies 
thereof,  oi-  so  much  of  the  said  statutes,  common  law  and 
acts  of  Assembly  as  were  not  destructive  of,  i-epugnant 
to  or  inconsistent  witli  ihc  fieed<nn  and  independence  of 
this  State,  and  the  form  of  gosernmeiit  therein  established, 
and  which  li.ive  not  hern  otherwise  proxiilcd  for  'ti  the 
whole  or  in  part,  not  abrogaioii.  repcai'd,  <-X|.ire(l  ■•!■  be- 
cbine  obsolete,  are  to  be  in  full  force  within  this  State. 


378  uaywood's  kepoktb. 

May  1796.  jf  at  any  time  since  the  commenrcment  ofoiir  Revolution, 
^"^'^''"^  ihf  .Iiuljjes  in  Enf^larid  hiive  g;i\en  a  new  mV  oT  derisinn 
iliffet-ent  from  lliiit  whirli  was  uriderstnnd  t(>  be  law  be- 
fore tliat  (tei-iod,  npon  whatever  I'easons  tin  y  may  l>ave 
proceeded  either  for  diawine:  causes  more  and  more 
witiiin  the  arbitrinin  of  the  court,  or  to  accommmlate  tlte 
Jaw  to  tlie  circumstances  'T  that  country,  such  decisions 
are  nol  precedents  for  our  coorlB  to  ftillow.  nor  can  they 
fdhiw  tliem  if  they  pursue  the  directions  of  the  act  of 
1778  ;  according  to  the  directions  of  whicli,  we  are  to 
receive  as  the  common  law.  such  parts  thereof  as  were 
heretofore  in  force  and  nse  in  this  tenitory  ;  so  ilia,t  in 
order  to  ascertain  whnt  is  the  coiiimr)n  law  here  at  this 
lime,  we  must  in  every  instance  recur  to  what  was  the 
law  here  at  and  htfore  'he  time  of  our  Rivolution.  1  make 
these  lemarks  because  the  aufhorities  thatare  to  be  relied 
upon  for  tlip  suppoii  nf  the  present  n'otion.  are  almost 
all  of  Ihein  either  so  near  to  the  time  <if  our  Revolution, 
tliat  tliey  had  no'  been  mude  public  an<l  adnptid  as  rules 
of  decision  here,  or  have  taken  place  at  a  time  povt«>rioi* 
to  the  discontinUHiice  of  our  Superior  Courts  before  the 
Revolution — they  were  chiefly  made  by  Lord  .Mansfieldf 
a  man  indee<l  of  the  most  splendid  talents,  hut  rather  too 
prone  to  innovation,  and  too  much  disposed  to  extend  the 
powers  of  the  couit — his  decisions  on  the  subject  now 
before  us,  are  opposed  to  thedetciminatirnis  of  Chief-Jus- 
tice Hoi,T.  who  possessi'd  as  much  firmness  and  know- 
ledge ol  the  common  law  as  any  Judge  who  ever  sat  upon 
(525)  the  English  bench.  They  m-c  opposed  also  to  the  deter- 
minations of  all  the  other  learned  men  wlut  preceded  him. 
One  of  <he  cases  to  be  relied  upon,  was  a  case  decided  in 
y  June.  1769,  Doe,  lessee  if  Hardiviav  v.    Pilkivgfon  and 

Mussel.  4  /iur.  2447  Tliere  the  demise  was  enlarged. 
The  case  was  so  cii'cumstanced  that  the  Plaintiff  w<iuld 
have  been  baired  by  a  fine  had  he  been  put  to  bring  a 
new  eje<iinent.  Tlie  case  now  before  ihe  court  is  not 
circumstanced  liki-  that ;  but  if  it  was,  we  have  no  evi- 
dence that  thai  decision  was  ever  heltl  by  the  courts  in 
this  country  to  be  law  in  force  and  use  here — hut  more 
paiticulaily  it  is  against  tlie  current  of  :.uiliorities  prior 
to  thai  time.  He  then  cited  a  case  from  Cuke's  Reoorts, 
Wlieie  'he  court  refused  lo  etilaige  the  dentlse  in  a  decla- 
ratior  M^  ejectment,  saying  it  v  as  a  snbst^n'i.il  p>rt  «)f 
the  dp,  1  .ration.  He  ais..  ciie<t  r«r//i  178.  1  Vrnt.  561. 
S  Parties  13.  1  Show.  207.  Cnrth.  400,  403.  2  Vent.  321. 


HAYWOOD'S   BEP0RT3. 


374 


Salk.  257.  Cliitf-Jiisfirc  Hoi,t.  upon  such  a  motion,  *'»>' ^''^^• 
obstrvrd,  he  liiul  no  iidiioii  o(  iKiildiris^  a  ww  f)ork-h"iisc  ^^''"^'''*-<» 
— alluding  to  ilio  (irip  set  U!>  >ii,Iu''!^i- Hisgham — ilnnby 
iiitiinaliiic;  his  r'c;ir  opini'.ti  liiat  iU<-  nioioii  wj's  nut  al- 
lowable. Chiof-Jii'itire  lloiT.  and  the  other  Judges  he- 
f(»fc  Itin  time,  thou_i^hl  the  demiKp  in  a  dj-'rinTwiion  in 
ejertiiieiit,  was  matierof  Rnhs<i!iir(> — it  whs  the  wrj  thing 
the  PlaintilT  lecoveiod.  H  tin-  teini  w«s  expired,  there 
was  iHitiiiiifr  iicfoiild  recover.  The  ejectmen' now  ii>>e<l, 
is  the  8am<'  piureediiia;  as  was  then  used — if  the  demise 
Was  a  mailer  oC  siibstMiire  then,  it  is  mow.  It  cannot  he 
said  to  be  inunatprial,  and  tiiatter  of  fmin  only.  Sh'tild 
it  be  totally  oniit'cd  out  ot  the  dei  l;iration.  the  Plain'iiT 
conid  not  t  fco*  cr.  The  (iiinripa!  question  in  an  ejerlnn-nt 
is,  niuld  the  lessor  miike  the  lease  laid  in  the  declaration. 
If  it  is  stand  lo  be  the  joint,  lease  of  several  lessors,  and 
any  oneofiheni  liath  not  a  legal  interest  in  the  whole, 
he  cannot  in  law  be  s:iid  to  demise  the  whole — it  is  only 
his  ronrn-niiiiion,  and  there  ran  be  no  recovery  upon  it 
— the  lessors  have  sucli  it  title  as  eijal)les  them  to  tnake 
the  lease  stated  iti  the  declaration.  If  it  he  stated  as  a 
joint  lease  hy  two,  and  upon  trial  it  appears  that  one  is 
tenant  fo?'  life,  with  leniainder  to  the  other  in  fee,  the 
Flaintiflf  faiiiiot  recover — the  remainderman  has  jiot  a 
title  tha'  will  enable  him  to  make  the  detnise  laid  ii<  the 
declHra'iou  :  I'oi'  each  could  not  demise  th'-  wlmte.  Cro. 
J.  61S.  6  Re,  14,  15,  «,  and  othei- books.  All  these  ciises, 
and  tliey  are  uniform  for  oiii^hf  I  know,  up  tothetim-  of, 
the  Rp\i)luiinn,  lend  to  slicw  that  the  demise  in  a  dn  Tua- 
tion  in  ejectment,  bath  always  till  these  modern  decisions  (326) 
took  place,  been  considei-ed  as  a  su!)stantiiil  part  of  the 
proceedini^s,  so  that  if  the  demise  laid  in  the  declaration 
could  not  entitle  the  PI;iiMll(f  ><>  recover,  he  could  not  re- 
cover at  all.  If  the  lessor  had  no  right  to  make  it.  or  if 
one  of  several  lessors  had  no  ri.a;ht  to  make  it,  if  it  was 
made  after  the  «nister  complained  of  by  the  lessee,  if  the 
time  of  its  commencenn'ot  was  not  asceitainable.  or  had 
not  yet  arrived  ;  or  if  it  had  expired — in  all  these  cases, 
accordiii!^  to  the  ancient  authorities  heretofore  followed 
in  this  country,  the  Plaintiff  could  not  recover  ;  and  they 
were  such  substantial  parts  of  the  declaration,  that  the 
court  could  not  suffer  tliem  lo  he  asneudid.  These  au- 
tboriiic-  were  received  as  evidences  of  tin  common  law 
in  force  and  use  In-rc  prior  to  the  act  (sf  1778,  and  which 
is  again  enforced  hy  that  art.     Our  courts  since  the  Re- 


375  IlAv^voot)'s  hei'outs. 

May  1796.  voliitioi)  have  tlioiislit  so,  ami  I  do  not  rcciilloct  a  siiipic 
^^^''<^<^  iiisiame  wIkto  tliry  Imvc  siiffeied  (hf  dcinist-  to  l)i-  fn- 
largfd.  1  tenieinbcf  a  case  flint  liiipppucd  iti  tlii-  court 
not  many  terms  ago,  where  J(ida;(>  S\  illiams  rd'iiHcd  a 
inotinn  of  lhi«  suit,  iuid  I  innsi  submit  i"  tlieroiiit  w  lictlici" 
it  is  proper  for  ihemto  eNlablisli  a  new  jirecedent  agiiiiisl 
the  niiiforni  tenor  of  all  llie  adjiidiralions  up  to  the  time 
oi Lord  Mansfield,  and  as  it  setins  to  me,  against  the  ex- 
press provisions  of  the  act  of  1778. 

E  contra,  it  Wiis  ar.sjiied  hy  J/r.  Taylor — It  is  not  con- 
tended on  the  part  of  llie  IMainliff  that  the  ronrt  lias  the 
]»ovicr  of  makiiiy;  law,  nor  lUt-  we  ask  that  they  shall  de- 
part from  established  pr<ce(]ents,  noi'  ihal  they  shall  as- 
rertaitj  what  the  coiniiion  law  is.  by  other  mean,'-  than 
those  which  have  always  been  hiiherto  i-ecognized  as  the 
proper  ones.  Our  common  law  is  the  same  cominon  law 
that  the  English  nation  have,  the  dilTerent  parts  of  which 
have  been  ascertained  by  judicial  determinations  at  dif- 
ferent periods,  and  preserved  in  the  books  of  Ucjinrts  ; 
or  are  contiiined  in  maxims  and  general  piinciides  which 
supply  the  means  of  making  a  pi'oper  decision,  v\liere 
none  hath  hitiierto  been  made.  1'hese  pi'iiicijiles  or  max- 
ims have  their  foundation  in  natural  eijuit^.and  are  atlapt- 
ed  to  the  physical  situation  of  mankind.  They  are  tlic 
solid  |iillars  upon  which  the  whole  struriiue  of  the  com- 
mon law  stands.  These  maxiiUH  will  always  jioint  out  a 
])rop<  !■  decision,  whei'e  no  express  decision  haili  already 
been  made  ;  and  the  Judges  are  at  liberty  to  resort  to 
Iheni  to  correct  the  improprieties,  or  supply  the  imper- 
fections of  decisions  already  made.  Sucli  is  the  natui-e 
of  man,  that  from  a  thousand  causes  he  is  perpi-tually 
(327)  subject  to  err,  and  he  frequently  does  so  with  the  best,  as 
well  as  sometimes  with  the  worst  motixcs.  Judges,  how- 
ever xirtiuuisor  wise,  are  sulijeci  to  this  common  intir- 
mity  of  human  nature,  equally  with  the  rest  of  their  fel- 
low men.  If  under  the  inlluence  of  a  prevailing  cause  of 
erriii'  tif  the  times,  they  Ijuve  miide  even  a  series  of  deci- 
sions not  lecoiicilcable  to  the  general  maxims  of  the  com- 
mon law,  the  Judges  of  alter  times,  when  the  obstacles  to 
ajust  decision  an-  removeil,  ina}  examine  the  foundations 
ol  tl'.o^e  former  dec  isions,  Cdinpare  them  with  the  max- 
in'H  ol  the  cumuKMi  hiw,  xnd  if  not  found  gr  inline  b,>  that 
sti'  (!  ltd,  may  eiiiicr  reject  them  in  toto,  or  alter  them 
upon  (iroper  reasons,  so  as  to  reduce  tbein  to  a  state  of 


uxywood's  iiEroiixs..  376 

compatibility  witli  coinmon  l;i«  priiicipks.  Look  into  May  1796' 
thi'  !h\v  bonks  fVnm  the  earliest  times,  and  see  how  that  ■^~y~'*-^ 
which  liith  betMi  siij>]inse(i  to  be  the  common  law  in  a 
great  varictj  of  painis,  hath  miderj^oiic  successive  chan- 
ges iiy  suliseqiK'nt  detcniiinaiioM,  fmiiiiled,  as  mankind 
have  adniiited  by  ilicir  acqiiirsiioMce,  upon  ticttcr  reasons ; 
yet  it  would  bo  improper  to  say  the  coiiimort  law  is  alter- 
ed— it  is  only  bettor  ascertained  as  mankiitd  have  gradu- 
ally acquired  grcaicr  li.i^lits,  more  freedom  for  discusssion 
and  a  wider  space  tor  the  exercise  of  the  nieiiliil  powers, 
in  propoi'tion  as  th«  lyi'aniiy  of  sn|!e)-stitioii  aiid  of  gov- 
ernment have  WO!!!  away,  and  opened  ti  liie  (iis(;overy  of 
manki'id,  ihe  way  to  tiiith.  I'hese  two  ciiciimstances 
will  account  for  ilie  ie;)iigtiance  of  many  of  ihe  ancient 
decisions  lo  the  iM;ixinis  of  the  common  law.  They  will 
at  the  same  time  evince  'he  jMOiirieiy  uf  a  hat  every  law- 
yer knows  to  be  a  fact,  that  th-"  more  modern  decisions 
are  held  to  be  the  best  evidences  of  what  ihe  common  law 
is.  Indeed,  n  ithiti;;;  cat!  afford  a  sli'oiiger  proof  of  the 
justness  of  these  nbservalions,  ihan  the  history  of  amend- 
tnents  at  tlie  common  l;iw,  alluded  to  by  Chief-Justice 
Holt,  in  OIK'  of  the  Repots  cited  on  the  other  side.  It 
proves  the  intluence  a  parlicular  cau-^e  may  iiave  in  for- 
inini;  the  decisions  of  ;he  day.  He  refused  tltc  motion 
not  because  it  was  (inrea-ionrtble,  but  as  it  tended  to  the 
alteration  of  a  record,  and  ;is  he  had  no  aiind  fo  build  a 
new  cliick-iiouse.  Edward  ihe  first,  after  lie  hail  been 
aome  time  in  the  French  <loiuinions,  returneil  to  England, 
and  as  it  is  supposi'd  watiting  money,  found  it  conveni- 
ent lo  pio.'ccuie  his  Judges — !iis  pretxt  was,  that  they 
liad  altered  iheir  records.  Thi'y  were  r'uined  by  ilie  enor- 
mous fines  set  upon  them,  and  Chief-Justice  Hinghani, 
among  tlie  rest  ;  and  it  was  afterv/aids  a  tradition,  that 
with  this  fifie,  a  clock-lmuse  was  built,  from  which  the  /'.^oo'\ 
clock  might  be  lieard  into  VVe.stminsicr-lIall.  This  gave  ^'^ 
such  a  shock  to  the  succeeding  Judges,  that  though  for- 
iTieriy  the  Judges  would  alter  their  records  so  as  !o  make 
them  speak  truth,  they  would  now  nn  lioiger  touch  a  re- 
cord alter  it  was  made  up — and  this  rule,  ree.lly  contra- 
ry to  the  common  law,  was  so  strictly  adliered  to,  that  It 
has  be<m  the  Work  of  many  I'urliaments  and  ages,  by  a 
great  variety  of  statutes  allowing  amendments,  and  ail- 
tliurisiog  Judges  to  get  over  nice  cxceiitions,  to  get  the 
belter  of  it — although  it  had  its  origin  not  in  any  princl- 


377  UAY WOOD'S    UBPHKTS, 

M'yir96.  j)Ji'  of  (he  eoiTim  >n  l:<w,  but  in  the  .arbitrary  exercise  of 
*"<''^'^*^  i->i)rtl  (tower,  acfiMted  by  the  avidity  of  thr  princely  of- 
fice. Can  any  cx.iinpit'  inure  slionjjiy  rviiire  thf  |)i'0|iri- 
ety  of  re-examining  lormer  decisixiis.  and  trying  ihein  by 
cuinuiun  iaw  niaxiin.s?  Can  any  exaniple  more  satisfac- 
torily prove  that  the  mod^-rn  drcisions,  where  variant 
from  the  old,  arc  worthy  of  our  cnnsidrraiion  ?  Ntitlier 
the  old  nor  llic  muftern  dfcisions  are  tlie  vrry  common 
law  itsrlC — they  only  prtfrss  to  ascertain  what  it  is. 
It  is  mori-  reH><onahli'  to  be  governed  by  decisions  matle 
iipiiH  an  examination  of  all  ihc  prior  cases,  and  of  their 
reaboiis  and  grouii'ls,  compared  »ilh  'ho  maxims  of  the 
common  law,  ihe  general  priiiciples  of  reason  and  jus- 
tice, and  assisted  with  all  liie  neiv  ligiiis  that  are  lur- 
ni.sijt'd  in  modern  limts.  rhan  adhere  itri|j|iciiiy  to  the  old 
derisiiMis.  us  if  they  were  the  very  common  law  itsell' — 
although  ill  fact  they  are  directly  opposed  to  it.  Then 
what  IS  liie  common  law  by  which  we  are  lo  be  governed  ? 
It  is  tliat  common  law  we  impoi-ti'd  I'rum  the  mother 
country,  received  liei'e  before  the  Revolniiou,  and  disco- 
verable hy  jiiilicial  decisions,  founded  upon  reasons  con- 
sistent with  its  fundamental  doctrines — aliich  decisions 
ai'e  n<  likely  to  be  found  in  the  modern  as  in  the  ancient 
iT|ii)rt8 — and  as  to  the  ini<dern  decisions,  if  they  are  to 
be  regard  d,  iliere  are  many  of  them  to  be  found  ihat 
will  .1' s  ify  the  amendim  nt  inovni  for  on  the  pai  t  of  the 
Plaiiititf.  I  will  ciie  one.  Burr.  Rep.  2447.  There  upon 
a  muiioii  made  to  enlarge  tiie  lietnise  before  trial,  and  up- 
on argutnrnt  all  the  foi  mcr  cases  were  cited  on  both  sides^ 
and  the  amendment  was  made  by  permission  of  the  court. 
There  are  n'her  cases  to  ihe  sMne  etlVct,  butil  is  ueedlK88 
to  go  into  a  recital  of  them.  I'liis  is  in  p'lint  for  us,  and 
is  snbsrqiient  to  all  the  cases  on  tlie  other  side;  and  as 
we  cinitend,  is  a  jMoof  of  what  the  common  law  really  is 
in  this  pi'iii'.  Tlie  action  of  ejeciinent  is  no  more  than  a 
fiction  tiironglioiit.  li  d  peiids  onlirely  lor  ail  ihcffica- 
'329)  cy  it  has,  upon  the  rules  of  ihe  court.  It  is  perfectly  un- 
der their  power  to  be  moulded  into  such  shape,  and  so 
controlled  by  the  rul.  s  of  the  court,  as  to  be  made  lo  an- 
swer the  only  einl  it  has  in  viev* — the  trial  nl  the  title  be- 
tween the  pailiPM,  fairly,  without  an^  improper  advan- 
tage allowed  on  either  side.  Ti^e  demi.sr  is  a  mere  fic- 
tion, and  only  inserted  lor  tlie  purpose  ot  putting  the  real 
Plaimilf  to  prove  thai  ne  had  sucli  a  title  as  gives  him 
a  right  to  make  a  demise  uf  the  nature  uf  tliat  stated  in 


jiavwood's  ueporTs.  378 

the  declaration  :  but  wlieriiei-  tlifit  di'inisc  be  fop  a  lon.s;-  Mav  1796. 
cp  or  sliiirtci'  tinn",  i'i  totally  iuiinrttcrial  as  to  the  point  to  ^•^''•^'^^ 
be  trit'd  bctwi'Cii  llie  parties  ;  and  there  ran  be  no  foun- 
dation in  justice  to  say,  that  a  slip  in  Inyiii.ii?  the  H<  titious 
demise  tor  a  shorter  time  than  Ihe  cans-  ran  be  broii,2;ht 
to  trial  in,  siiail  he  so  prejudicial  to  the  party,  as  that 
lie  shall  be  nonsuited,  and  compelled  (o  pay  all  the 
costs  <«r  (lie  suit,  for"iio  oilier  purpose,  than  that  he  may 
be  at  liberty  to  iiiser:  a  demise  of  ilio  same  nsUure,  but 
for  a  longer  time,  in  auuthcr  dechiration.  Sm  h  niceties 
are  not  calculated  to  promote,  but  to  defeat  the  ends  ol" 
juHiiee — they  do  not  enhance  the  value  of  tlie  common  law, 
but  depreciate  it — they  do  not  beget  r<'\ereiice  for  the 
courts  of  justice,  but  discontent  and  murmurinj^s  against 
their  proceedings — tiiey  deserve  not  the  ((lunienanre  &£ 
this  rouil,  much  less  tiiat  the  court  should  go  ab!)U(  to  re- 
ject decisions  wliit  h  have  been  made  against  them.  As  to 
the  practice  of  mir  courts  since  tiic  R'  volution,  I  am  not 
able  to  say,  what  it  has  been.  1  have  understood  it  to 
have  been  the  practice  to  enlarge  the  demise  wlieii  appli- 
ed for,  before  tlie  irial  begun.  I  remember  the  case  al- 
luded to  by  Mr.  Moiwe — I  here  the  motion  was  made  after 
the  jury  was  sworn,  and  Judge  WiiLiAMs  refused  to  per- 
mit tlie  aineiidment  for  that  reason. 

The  Ciiunsel  for  the  Defendant  replied. 

Per  curiam — Formeily,  demises  in  declarations  in  K* 
je<lmeni,  were  enlarged  only  by  consent,  atid  not  other- 
wise. A  ditteiei.t  piaciice  beg;in  to  jirevail  in  the  Eng- 
lish courts,  in  the  I  itJer  part  of  the  reign  of  George  II. 
and  hath  continued  hitherto.  It  very  pi-obabi}  p.  emailed 
here  also.  The  first  instance  was  in  the  twi-ni} -first  of 
George  II.  leptuted  in  Strange.  127si.  A  disiinciion  was 
made  a!>out  this  time,  between  tin-  cases  wli'i'e  judgment 
had  been  gh'en  and  whcie  not.  if  it  had  been  given,  the 
record  was  made  up  and  could  not  be  altered.  After- 
w.irds,  a  distinction  was  made  between  the  cases  where 
the  motion  to  enlarge  was  made  pending  the  ejectment, 
and  where  after.  In  the  latter  case  ii  could  not  be  alter- 
ed, lor  that  would  be  to  make  a  new  term,  and  not  to  en- 
large tiie  old.  These  distinctions  seem  to  have  been  a-  (330^. 
dopled,  to  get  at  an  amendinciit  witln>ut  infringing  for- 
mei'  decisions — some  of  which  had  decided,  (hat  Ihe  en- 
largement could  not  be  made  "here  the  motion  was  after 
the  term  expired.  However,  since  these disltnctioris  pre 
48 


379  Haywood's  reports. 

May  1796  vaile«l,  tliPiT  ha\e  been  otiter  derisidiis  in  favour  of  cii- 
^-^'^''^^  liifsriiiR  the  (I'-misc.  wiilioiit  reiranling  >lie  forranr  r«lps. 
In  ilic  hrxt  of  Gforge  III  the  ilcmisf  was  laid  lo  be  in  tlie 
S3(l  lit  George  III — alici'  vci'dirt,  the  court  upon  argu- 
ment, alb)\ved  tb"  demise  t(»  be  amended  :  lliere.  the 
term  was  not  ronimence«l  at  the  (ime  of  riie  trial.  Tlicre 
vas  :inolber  case,  Coxvp.  841,  where  th<-  demise  was  en- 
larged Jifter  judgment.  In  the  14tli  of  George  III.  the 
term  was  ex|)irrd  and  allowed  (o  be  enlarged.  2  BL  Re. 
940.  941.  Tlie  rourt  there  said,  an  ejertment  is  the  erea- 
tute  of  the  rourt.  and  open  to  every  equilabli  regtilation 
for  exiii-diiiti^  the  true  jusiire  of  the  case.  These  deci- 
sions Wire  declarations  of  what  tiie  common  law  was  ionj; 
bef'ire  our  Revolutic)n.  They  were  most  probtbly  recei- 
ved here — and  if  only  such  decisions  as  took  place  before 
the  Rrvolutimi,  are  evidences  of  the  common  law  under 
the  act  of  1778.  still  tlie  amendmeni  may  be  made.  It 
seems  highly  jiroper  njxin  the  reason  of  the  thing,  that 
amendments  of  tliis  lvin<l  slmulil  be  made.  The  demise  is 
but  a  fiction — it  is  noi  real.  The  only  question  in  eject- 
inent  is,  has  the  lessor  such  a  title  as  can  enable  him  to 
make  such  a  lease  as  tiiat  stated  in  the  dcclarati<in — if  lie 
lias,  he  ought  to  recover.  The  term  of  the  demise  is  im- 
material. Whether  the  demise  be  for  a  longer  or  a  short- 
er time,  the  party's  title  is  in  no  wise  altered  or  aBcctci! 
by  that  circumsiance — and  if  in  general  such  alterations 
ought  to  be  made  for  exjiediting  justice,  there  arc  very 
ample  reasons  why  it  slnniid  be  made  in  the  case  now  be- 
fore the  court.  This  demise  was  laid  to  be  of  five  years 
continuance,  and  by  the  delays  of  the  court  that  lime  is 
expired,  or  is  likely  to  expire  before  the  cause  can  lie  tri- 
ed. Tl'C  Plaintiff  had  reason  to  expect  bis  cause  would 
be  tried  liefore  the  expiration  of  fiveycir^.  He  Iims  beca 
in  no  fault.  Il  is  not  owing  lo  iiim  tliat  the  •uuse  has  not 
been  tried.  Shall  he  then  be  turned  round  to  begin  his 
cause  again  ?  Surely  ii  would  be  the  excess  of  injustice 
to  say  so.  There  arc  cases  enougii  to  w.irratit  the  amend- 
ment, and  it  will  operate  no  hardship  upon  any  f.ne — 
wherefore,  let  the  demise  be  enlarged,  and  it  was  eular- 
ged. 

Note. —  Vide  Fairclothv.Inrram, post  501.  .Adanuon  KJcct.^02,  20K 

'351)  Mc.Naughtoii's  Executors  v.  Moseley. 

The  jury  returned  to  give  their  verdict,  and  said  tliey 
found   for  the  Defendant— t/lfr.  May  for  tlijj    Plainliii', 


uaywood's  repokts.  380 

prayed  before  <l»e  vpidict  was  enliied,   that  the  Plaintiff  ^'»y  ^^90. 
might  bi'  called  and  nonsuited.     Mr.  Moore,  for  tii>  D  -  *-«''"''"^*^ 
feiidant,  said  it  (ould  not  br  done  i«fi«>i  tin- jiny  iiiid   de- 
livei'd  ilifii   vcidirt,  tlioupjii  btt'nie  ii  was  ircordi d. 

Haywood,  Justii:!-,  \  .  lii  veiy  clear  it  iiia>  be.  <loiie  at 
any  lime  beCoie  1  lie  verdict  is  recorded.  Mr  Moore,  I 
am  as  clear  ii  cannot  be  done,. and  I  |jray  time  to  argae 
it  and  |irodiice  authorities. 

Fer  curiam — Let  tlio  verdict  be  recorded,  nuhject  to  be 
set  aside  if  tlie  Delendiinl'.s  eonost-l  d.i  noi  sliew  ihai  a 
nonsuit  cauno!  be  taken  after  the  jury  lia»es(iid  tor  whom 
they  find.  The  verdict  was  entered,  and  afiervvards  a 
new  trial  v\as  moved  for  and  granted  for  another  cause. 

NoTK— The  Plaintiffis  liemiindable  when  .1  veiilict  is  to  be  ffiven. 
C».  Litt  139,  u.  2  B/.  Com.  376,  In  which  latter  boek  it  issaiO,  when 
the  .iur>  r,  tin  n  b  .tk  to  thi-  bar,  and  betui  ■  they  dehvtr  tluir  tciUic},. 
the  Ph<intiff  in  pt  I'son,  or  by  atturney,  is  bound  to  appeal"  to  aiiswei- 
the  atnorceme.'l,  and  if  he  'ioes  not  appear  no  verdict  can  br  •;iven.  , 
5  M0.2O8.  Afteir  a  general  vtrdict  the  C'lurl  will  not  snft'er  the  I'liiin- 
tift'to  discontinue  hs  actiou.  2  //  4  c.  7,  pvovi^ies  that  Plaintiifshali 
not  bK  n. intuited  after  a  vtrdict,  tiuuigh  lu-  n  ight  atthe  common  hiw, 
if  he  did  not  like  bis  damage?.  2  H.  P  C.  184.  s,.).s  It  is  the  opinion 
of  some  boolss,  that  the  Pbiniifl'  may  be  no.  suitu'  at  the  commou 
law  at  any  d.iy  of  continuance  belbre  jiidgmsnt,  though  that  i«al.eied 
by  ?-  //.  4,  uko  9(,',fre— What  is  the  meaning  of  the  words  "after  ver- 
dict given  }"  Wnether  it  can  be  said  lo  be  given,  before  1'  >s  re- 
ceived by  tlie  court  and  entered  of  record,  previous  to  which  stage 
the  jury  may  retract  or  alter  it ;  neither  is  it  complete  till  the  recorii 
of  it  be  read  over  lo  them,  and  assented  to.as  recorded. 

Anonymous. 

Articles  for  the  conveyance  of  land  upon  the  payment  of  money,  will 
not  create  such  a  trust  on  the  part  of  the  Plaintilf  (at  least  before 
the  money  is  paid)  as  to  prcvc  nt  his  recovering  in  ejectment  fronj 
the  person  lo  whom  the  articles  were  made. 

This  was  an  action  of  ejectment.  Upon  the  trial  of 
which  the  Plaintiff  produced  bis  deeds,  and  proved  a  clear 
title  in  himself.  On  the  side  of  the  Defendant  wercpro- 
ducetl  articles  for  a  sale  of  the  land,  signed  by  the 
Plainlift':  in  which  it  was  agreed,  that  the  DeiendHUton 
pajment  of  so  much  tnoiiey,  sluuild  receive  a  title  from 
the  Plaintiff — and  Defendant's  counsel  said  he  could 
prove  payment  of  the  money.  It  was  denied  on  the  side 
of  the  Plaintiff  tiiat  payment  had  been  madt;.  and  the 
Defendant',  counsel  stopt  here  wiijinut  allempting  to 
prove  the  payment.  He  argued  that  the  Plaintiff  ought 
not  to  recover — for  no  man  can  recover  against  hi.s  own 


38i  haywood's  heportb.  \ 

Sfey  1796.  tjolemn  deed,  covenantinp  for  fnttlict'  Assurances  or  quiet 
^^'''""'^^  cnj.  jnipnt  :  and  Hiis  aj^rceTtirnt  bririj?  under  vthI.  is  tan- 
(332)  tHi';omit  to  siirh  »  <IopcI.  He  rii-d  Cou-p.  597.  GoixltitU 
on  tin*  «!ciniso  oi  Edwards  <•  Bailey.  E  mvtra — I'  was 
are^iit'd  lliar  the  only  f|Ufsti'iM  now  hcCoip  \he  court  is, 
wii' tlier  or  not  tlie  I'laiiitifl"  has  ilie  li-a^al  'itle.  He  has 
shewn  his  title  at  law,  anil  what  is  sliewu  on  the  part  of  I 
Defendant,  is  not  snch  a  ronveyanrc  as  will  pass  it  out  of  1 
Iiini.  It  is  not  pretended  that  the  writing  prodiieed  ran 
be  bi'iiujiht  under  the  deminiinatinn  of  any  <•!  tho'-e  deeds 
that  ilie  law  reciigtiizes  as  a  (',on*eyanre  oriille.  >Vhetlier 
the  [tefendant  has  an  equitable  title  is  not  ntiw  necessary 
to  hf  consi'  ered.  Thi»i  com-t  will  not  enquire  into  the 
eijiiitable  title  of  the  Defendant  upon  a  trial  in  ijectment. 
If  lie  hath  an  equitable  title  onl},  this  rotiil  has  no  jtiris- 
dirtion  i'nsiirli  acasr — it  not  beinf;rcin)|ieteni  by  the  roles 
of  liiW  to  gixe  reiiel' — it  wcirild  be  nniiatoiy  in  :hein  to 
enter  iiito  any  innv estimation  of  that  ciiTuinstanre  ;  nei- 
ther is  the  ruse  hi  lore  the  court  similar  to  that  cited  on 
the  nther  side — this  is  not  a  covenant  lor  fnrthei-  assu- 
rance i>y  quiet  enjoyrri!  nt,  it  is  only  a  conditional  agree- 
ment to  make  a  title  wiien  the  money  shall  lie  paid  ;  and 
it  would  he  directly  iti  tie  fare  of  the  aj2;reemetit  to  say 
the  Flaintiff  shall  be  iii\ested  of  iris  title  before  he  liatli 
reci  i\ed  'he  niiine>.  Ifbecunnot  recover  now  aj^ninst 
the  Defendant,  neither  would  lie  have  a  ri.a;b'  to  recover 
against  the  ^enr^e  of  the  Defendant,  and  he  wmild  be 
totally  deprived  .f  the  security  he  has  reserved  by  the 
terms  of  ibis  afjreenient. 

Per  curiam — Let  the  jury  give  a  verdict  for  the  Plain- 
tiff, siihjecf  to  the  opinion  of  iJie  court  upon  a  statement 
of  the  facts  proved  on  the  case. 

This  was  consented  to  by  the  counsel  on  both  sides — 
a  verdict  was  gi\en  acci>rdiMgly.  and  a  statement  made 
■ut  xupra.  Three  or  four  daj  s  afterwards  the  court  gave 
jud.t;inent. 

Fer  curiam — We  have  considered  of  this  case,  and  the 
authnrilies  relatixe  to  the  point  that  was  stirred  in  it.— 
4  Burr.  2208.  Right  on  tlic  demise  of  Grffii  v.  Proctor; 
and  Cimp.  597.  cited  at  the  bar  upon  the  argument,  go 
upon  tills  ground — where  there  is  an  absolute  inii  ondi- 
tiona!  agreeineiii  l>y  deed  on  the  pari  I'f  the  Plaintiff, 
thai  thi  Defendant  shall  enjo)  the  premises,  he  shall  not 
be  permitted  tu  invalidate  that  deed  by  recovering  against 


HAYWOOD  S    ItEPOUlS. 


S^2 


»t.  It  is  unrpasnnal)lc  ih^t  lip  sliouUl.  When  Hip  Jopi] '^^y  ^''^^• 
is  fairly  pxcriiifcl,  und  raiiiini  he  ini|«'rtrhpil  T":  fi-dM',  i 
is  e»  idciicc  (if  uiKxl  coiciidfiHtiiiii  i-HS'-irisr  fnin  'Im  Dc- 
fpiulaiif  tn  tlu'  l^liiiiiliir.  vliirh  niakiH  tlic  Pliiinfift"  i  uiis- 
lee  of  tlie  l<,2;i<l  title  fin-  ilic  Dj'fi  Jidiuit,  a»  lenst  during  (Q-in\ 
tlio  lime  llii'  roitlriict  is  to  li»st.  !ii  ihe  pnscfit  fuse-,  ^"  "' 
thori'  is  no  absolute  iiiH-niMliti>»iaI  amrcenu  nt  liial  llii-  De- 
fendant sli:(ll  Iiiive  and  enjoy  tlir  iiossissiot..  Hi-  is  to 
have  a  fi)iivt\>anrn  when  dp  jiiiys  tin'  inoncv.  Tiiis  im- 
piii'S  most  strongly,  liiat  lie  is  not  (o  have  it  b"forr. — 
There  is  another  class  of  cases' however,  into  which  tl  osc 
before  citid  seem  to  enter — they  decide  that  a  uustec 
shall  not  he  perniiited  to  recover  in  ejectment  airainst 
!iis  cestui  (JVC  trust ;  and  (hat  a  vendor  of  lands  is  a  trns- 
tce  foi'  tlie  vendee.  One  of  these  cases  is  r  |)or1<d  in 
Coivp.  475.  The  reason  llie  conit  ,u;ives  why  thfy  will 
not  |ieiinil  tiie  I'laintifl'to  lecnver  is,  Ixcanse  to  do  that 
would  only  lie  to  give  the  Court  iif  Kqr.irj  an  (ip|iortt;nity 
of  un<l()inp;  all  a!?aii>  by  seltinsc  t*  I'isht.  Courts  of  Law 
now  tM'.ce  notice  of  ihese  Irnsfs  t'l  prevent  d<  lay  and  ex- 
perice  to  the  suiiors  l>y  seiidinp;  tlieni  lo  Equity.  Oihers 
of  these  cases  reported  in  Ifoiig.  770,  Diirvfnrd  and 
East.  735,  hut  in  these  cases  i|ie  r-iile  is  laid  diwn  to  aj)- 
ply  whei'"  the  Plaiiiiift'is  cl(  ari)  a  iiiistee,  ^o  cir(uin- 
stanced  ihat  a  Court  of  E(|uity  wonld  ilecrec  a  specific 
oxecnlinii  of  the  aa^reeiiient — there  he  shall  not  recover  ; 
bill  if  it  be  not  clear  liiif  doul)ffnl  whe'hee  he  be  siicli  a 
tru-.tec  or  not.  a  Cbdrt  oF  Law  leaves  that  enquiry  to 
the  court  that  has  prii|)cr  cognizance  of  trusts,  and  will 
not  take  any  notice  of  it  upon  a  ti-iai  in  ejectment.  To 
say  ill  a  Court  nt'  Law,  tiiat  a  (riifiiee  shall  inrt  recover 
in  ejertnicnt  against' his  cestui  que  trust,  \-i  goingpi  ihaps 
full  far  I'lioiigh  ;  jierhaps  further  than  the  rules  of  tiie 
ancient  common  law  would  warrant.  Had  this  rule  in- 
deed pre\ ailed  formerly  at  law,  it  is  jirohahle  tiie  Court 
of  Equity  woiilfl  not  now  lla^e  been  >n  possession  of  that 
jurisdiction,  to  svliicli  the  di'lay  and  expeiice  of  an  apjili- 
cation,  has  latterly  inilnced  Courts  nf  Liw  to  adopt  the  • 
rule  established  by  tliose  decisions — and  though  perhaps 
wi-re  this  a  clear  trust,  this  court,  for  the  same  reasons 
that  weighed  in  these  cases,  might  now  adopt,  the  same 
rule,  yet  wo  are  of  opinion  this  is  n<it  a  case  of  a  clflar 
and  undoubted  trnsi — the  vendor  only  becomes  a  trustee 
where  iho  vendee  has  actually  paid  hitn  the  mo.iey — nere 
he  has  not  paid   the   money — liie  non-payment  of  the 


383  Haywood's  uevorts. 

May  1796.  money  is  tlic  cause  i)f  this  action-ilie  xenilorby  tiici-xprcos 
'~^"^^^^'  ti-i  iii«  "f  flic  Mgi-pcitie«(t  is  not  nljlijjri'd  to  maUo  a  rtiii\ey- 
aiicc  until  j)-.iyiiiPiit  iil'  tlip  nudioy.  This  is  so  far  from 
bein.2;  the  cast'  of  n  cU-iy  liiisr,  that  it  is  raiiier  clear  the 
otiicr  v\ay  ;  ami  upim  priiiciph-s  oT  c.'>imnoo  justice,- we. 
shouM  iKii  be  «:iriairir{l  iti  sayiiiii:  the  possession  sliuiild 
be  taken  from  ilie  PlaiiiliJ)'.  or  dciiieJ  lo  him,  when  bis 
agreement  cvitlciilly  implies  ihc  contrary — wherediie  let 
L-^'^^J  the  Pliiinliff  have  jiulgnient.  Judgmeiii  was  cntcreil  lor 
the  Pl.iintilT  accorditigl} . 

T^OTL.—  Viile  Mams  oil  Ijntmfnt,o2,jS.   neaJv.  Rcail.S  T  R.W^. 

Exeruiois  of  Davis  v,  Wilkinson  ct  aU 

By  the  act  of  1789,  Sev.  c.  314,  s.  4,  the  s^rvivinf:  obligor  and  execiJ 
(ui'sof  the  (lecexsed  may  be  sued  jointly. 

This  suit  was  brought  against  tlie  executors  of  a  de- 
Vide     ceased  joint  niidertaker  to  pay,  and  the  survivor.     There 
r'^'^ftAW    "'^'■^  sever;;!  other  suits  on  liic  docket  of  this  court  thu« 
iJ"co.  V.    circunistaiiced,  hcing  suspcndrd  l»y  inoiions  in  arrest  of 
Daniel       judgnieiil,  and  sjircia!  cases,  iirilH  a  decision  could  he  had 
Cierry&  upoii  some  one  of  them.     The  tloiiht  arose  upon  the  coii- 
am'e  iwf  ''"■"Clion  of  tlie  act  of  1789,  c.  57,  S.  5.      "  And   w  hcrea.s 
it  is  a  lule  of  common  law,  that  in  case  of  the  death  of 
a  joint  obligor,  the  debt  can  never  survive  agtinst  his 
beir^,  execulors  or  administrators  ;  which  role  fieipient- 
ly  is  injurious  and  oppressixe  to  the  tjurviving  obligor  or 
obligors  :    to  remedy  which  be  it  enacted,  tlint  from  and 
after  the  passing  of  this  act,  in  cas&of  the  death  of  one 
or  more  Joint  obligor  or  ohiigors,  the  joint  debt  or  coii- 
trac  ^liall  atid  may  sur\ive   against,  the  heirs,  executors 
or  adniinistratnrs  of  the  deceased  obligor  or  obligoi'.s,'$as 
■well  as  against  the  survivor  c)r  survivors  ;   and  when  ali 
the  obligors  shall  die.  the  debt  or  contract  shall  survive 
against  tile  heirs,  executors  and  administrators  of  all  the 
said  joint  obligors. 

Jmies  for  the  Di  leiidants — This  act  was  made  for  tho 
benefit  of  the  obligee  or  creditor,  as  well  as  for  that  of 
the  debt(W.  It  was  lor  the  benefit  of  the  obIiji;ee  that  he 
should  not  he  confined  lo  the  surxivor,  as  be  perliaj)S  might 
be  insolvent  or  not  to  be  come  at,  but  that  he  might  re- 
sort also  if  he  clio.se  to  the  executors  of  the  deceaseil,  wh» 
perhajis  were  sol\eni  and  x^ilhin  the  reach  of  process. — 
The  old  rule  was  frei^uently  injurious  to  tho  surviving 


ir^YWOOD'S  REPORTS. 


384 


obligor  where  lie  was  onl}'  a  suntj — llic  crcilitor  was  ^^^  ^''^^' 
•obliged  ill  tlif  fifst  iiist.iuico  to  take  liis  remedy  aj^ainst '-^'^''''^^ 
him.  'I'lie  lU't  mc-.mt  to  remedy  tlu-sp  miHrliieis.  by  etia- 
biiiij?  1h("  (M'editi)f  tit  sue  eitlier  the  iiiic  or  the  other  at 
his  election  ;  uiili  tliis  view  it  says,  the  (lel»l  siiall  sur- 
vive as  well  a!;;ainsl  the  executor  as  tlic  survivor — not 
tliat  it  sliall  survive  against  both  joijiti}.  but  it  U  to  bea 
delit  charc.Tubie  upon  one  as  well  as,  that  is  to  say,  in 
lilie  raaiiiier,  as  as^ainst  the  other  or  survivor.  How  did 
it  survive  against  the  survivor,  at  the  lime  olpassiti^  this 
art?  Why,  ai^aiiist  him  severally  and  Jointly,  witli  the 
other — as  10  him,  tiiiTe  is  no  altei'ation  hy  this  act — he 
stands  as  he  did  belorc.  The  act  i)rofesses  to  he  made 
for  his  benefit,  but  if  he  is  still  jointly  to  be  sued  witli  the  /-3^-> 
rxciiitor,  he  is  no  more  cxeujpti'd  IVom  suit  Ihan  hefore.  ^ 
Whether  only  a  surely  or  a  princiiiai",  the  injury  com- 
plained 1)1"  in  ilip  preamble,  as  to  him,  remains  nearly  the 
same  ;  and  as  to  ihe  executors,  if  iliey  be  the  executors 
of  a  surety,  they  are  in  a  worse,  situation  than  before,  if 
they  are  no>-v  necessarily  to  he  siieil  under  this  act.  As 
to  the  creditor,  lie  too,  in  many  instances,  is  placed  in  a 
worse  siiualioii,  if  lie  must  now  sue  the  executors  toa;ether 
with  the  survivor,  when  they  ai'e  !n)t  periiajis  amenable 
to  process,  which  must  be  continued  to  the  pluries  before 
he  can  proceed  atjainst  the  survivor  who  is  on  the  spot. 
The  cieditor  will  be  delayed  longer  thafi  if  this  act  had 
not  been  made — how  is  it  beneficial  to  the  creditor  to  say, 
yon  shall  sue  liotli.  When  hy  so  doini;;,  he  will  be  greatly 
delayed,  and  v.  hen,  but  fur  the  act  he  niiglit  proceed  to 
ju(l;;ment  immediately  againsi  the  survivor?  But  if  the 
act  gives  election  to  sue  eitiier  tlie  one  or  the  other,  as  t 
onnleud  it  does,  tiien  t!ic  creditor  receives  a  bciietit  from 
it  which  he  had  not  before:  he  may  sue  the  real  debtor 
only  leaving  out  the  innocent  surety,  and  he  may  pi'oceed 
'.vitlrmt  the  delay  incident  to  suing  them  hotli — the  other 
coiisii'uctioii  suhjecj^s  to  all  the  iiicnnveniences  just  now 
j)oiiited  out.  Some  argument  may  be  drawn  from  the 
words  of  t!ie  sentence  next  following — "  And  in  all  cases 
of  joint  obligations  or  assiimplioiis  ol  coiKirtners  and 
others,  entered  into  after  the  passing  of  lliis  act,  suits 
may  be  brought  and  prosecuted  on  the  same,  in  the  same 
manner  as  if  such  ohlign(ioiis  or  assumptions  were  joint 
and  several."  The  Legislature  provides  for  cases  before 
the  act,  and  for  cases  after  i( :    witii  respect  to  the  latter 


iiSS  iiavwood's  reports. 

May  1796.  t|ie  remedy  shall  be  joiiif  and  several — is  there  any  rca- 
''"^'^^^'^^  son,  why  tln-y  should  wish  ir  to  be  joint  onlj  in  the  foi'» 
iner  casfH.  and  to  altei-  il  I'roiTi  several,  as  to  the  s!irvi- 
vor'S.  tojitini  aj^aiiist  '.'  •  ii  ami  the  executors  .'  Tin-  Le- 
gislaiure  evidt-nlly  tuKsideicd  ihat  to  make  the  renu-iiy 
Si'veral,  was  essen'ial  In  ihr  j)iir{)'iH<'S  ol'jnstice,  or  why 
did  they  sa_>  in  liiis  iseMtcnce  that  ajoini  assumption  shM 
be  several  also  r  And  if  (hey  did  cousitler  it  essential  to 
justice  that  it  should  he  sevt-ral  as  well  as  joint,  why  in 
the  preceding  sentence  have  tln-y  intended  to  alter  the  se- 
veral renieiiy,  iiilo  a  Joint  one?  Not  t'>  say  any  thin;;  of 
the  uncommon  Jiidicinent  that  sncn  a  suit  as  the  present, 
must  iii-icssarily  requiie.  the  smallest  consideration  up- 
on that  point  only  will  servi^  to  sliow  the  conrusiuii  that 
a  different  consii  liction  of  the  act  would  produce. 
(3S6)  E  contra — It  was  urged  that  the  point  now  in  contrn- 
vers>  h  d  bien  settled  at  Salisbury,  upini  ai-guiin-nl  in  the 
case  of  Brown,  Measrs.  Campbell  4'  Co.  \,  Daniel  Clear ij 
ix,  James  Cndgi  administraiors  of  David  Craig,  Sepiein- 
her  term.  1794. 

Curia  advisari — After  a  few  days  taken  to  consider, 
thc)  gave  inila:ment. 

Fer  airinm — We  have  looked  into  the  case  cited  at  tlio 
bar  the  othi-r  day,  deciiled  at  Salisl»ury — it  was  a  case 
decided  upon  urgumriit  hy  Judge  AsHii  and  Judge  Wii.- 
xiAMS — we  are  satisfied  wita  the  reasons  of  that  decision 
as  given  by  Judge  Williams.  VVherel'ore  Ictjudginent 
he  i-ntcred  for  ilie  Plaiirtift'.  and  it  was  entered  accord- 
ingly. 'J'hi-n  the  Plaintitts  in  all  the  other  suits  depend- 
ing np(ni  the  decision  of  this  point,  entered  up  their  judg- 
ITient  also. 

Note. — Vide  Brown,  Campbell  Si  Co.  v.  Clary  £j>  Craig,  .'Idm'rs.  unil 
the  note  tlierelo,  ante  lOT. 

Glisson  V.  thc  Executors  of  Newton. 

Defendant  had  been  awarded  tu  pay  Plaintiff"  a  cerluin  sum,  but  at  (be 
day  ofpaymfnl,  iiol  liavini^  thc  mont-y,  lu  agreed  «ilh  Plain  fl"lo 
give  moiv  llian  six  per  cem.  for  induljjencr:  and  :>  bond  was  p  van 
lur  th  •  priiK  ipal  sum,  and  Uie  amouiii  b'l^e  tlie  Icjjal  interest  wa» 
paid  partly  in  money,  and  a  note  ijivrn  tur  tile  balance: — Upon  an 
action  oil  tliebond,  ii  was  held,  that  the  traiisuclioii  was  usurious 
and  the  bond  void. 

Dt'ht  upon  bond,  anil  the  statute  of  usury  pleaded.— 
Upon  evidence  it  appcated,  that  disputes  existed  between 


Haywood's  reports.  38fe 

tlie  Plaintiff  and  D>feii(lant,  relative  to  a  tract  of  land  ;  May  1796' 
that  tliey  aj^ieed  to  submit  those  dispiitfs  to  afbitr^stion  j  v.^'v^^' 
that  the  Hi'l)ilrai(irs  awarded  Glisson  to  give  piis>*es,sion 
of  the  land  to  Mwton  at  a  prefixed  day;  and  thaf  onthe 
same  (l;i_v,  JVcwtuii  shotiM  |>ay  ninety  pnunds  to  Glisson. 
On  the  day  .ippdntcd,  JVewton  beins;  unable  to  pay  tiie 
money,  prujiosi'd  that  Giissiin  should  gi^e  liinr  lor  pay- 
ment, about  eli'\en  montlis  |.in;j;i-r  ;  foi-  that  forhearance 
he  would  give  a  |)remiuni  of  25  ih)llars,  an!  moreover, 

pay  the  ie_a;al  interest this  pro|>osal   was  acreptcd  by 

Glisson.  Wlieieupon.  the  bond  in  question  was  drawn, 
payable  -it  a  day,  aiioul  eleven  aioniha  from  tlie  date,  and 
JVfewJott  paid  <l(nvii  13  dojlai's,  and  gave  a  separate  ngte 
for  the  balance  i>f  the  25  <I.illars. 

It  was  argued  by  Slade  for  the  Plaintiff",  that  this  was 
not  usury  to  avoid  the  bond — nsui-y  could  only  be  com- 
mitted on  Ihe  loan  oC  nn)ncy  ;  and  tliis  was  not  a  loan, 
but  a  giving  a  fin  Iher  day  of  payment  for  a  sum  already 
(\uc  rri)m  the  Defi.ndant.  It  is  not  usury  for  another  rea- 
son— the  art  says,  "And  that  all  boiid^,  cnntracis  andas- 
3ui-ancc3  what--ocvei-.  made  after  the  time  aforesaid,  for 
the  payment  of  any  principal  or  money  to  he  lent,  or  co- 
venant to  be  peifornied,  upon  oi-  for  any  usury,  where- 
upon or  whereby  (heie  shall  be  reeei\cd  or  taken,  above 
the  rate  of  six  pmnids  in  tlie  hundred  as  afoirsaid,  shall 
be  ulterly  \oi(l.*'  Nov\  upon  the  boiiil  which  is  the  foun- 
dation of  this  suit,  there  is  not  any  thing  reserved  more 
tlian  the  legal  interest  ;  nor  thereby  is  there  reserved  or 
taken  more  than  lawful  interest ;  and  therefoi-e  the  bond 
is  not  within  the  words  of  the  act  so  as  to  be  made  void 
by  it,  whatever  fate  the  note  might  undergo,  were  a  suit 
instituted  upon  that.  To  the  first  part  of  his  argument, 
he  cited  Cnwp.  772,  It 3. 

Sampson  e  contra — Wliere  a  man  has  my  money  in  his  ^„„»-. 
hands,  and  1  agiee  to  give  him  day  of  payment  for  it,  \'^'^' i 
that  is  as  much  a  loan,  within  the  uieaiiiug  of  the  act,  as 
if  I  liad  actually  advanced  hiiri  tiiat  much  money,  and  this 
seems  to  be  admitied  in  one  of  ihf  cases  cited  from  CoW' 
per.  Then  when  this  bond  was  taken,  there  was  a  loan 
for  a  less  time  than  a  year,  and  npo.i  the  <  intract,  wliich 
is  liie  parent  of  the  bond,  there  is  a  uservation  of  mure 
for  giving  day  of  pa\meiit— much  more  than  the  act  al- 
lows. The  case  of  tlie  FlaintilTis  no  way  betteied  by  ta- 
king a  separate  security  for  the  excessive  sum.     Would 


387  iiAywoon's  heports. 

May  1796.  that  sci've  to  evaile  (lie  act,  tidtliin!;  were  more  easy  than 
*^^'^'^^-'  tn  avoid  tlio  effect  of  it,  wliicli  lias  been  liithcito  su|)[iosed 
so  ilifficiilt  and  indeed  imi)(>sslble  to  be  eluded.  He  cited 
1  Haw.  P.  C.  248,  and  a  case  fiom  Crake's  Rep.  2  Cre. 
507 — Roberts  c^-  Fremain — where  lliere  wne  two  instrti- 
nients,  one  foi'  seeur  iitf^  the  |)rinci|)al  sum,  the  other  for 
securing  the  unlawful  interest  ;  and  Doug.  235.  These 
authorities  arc  diredly  in  point  to  the  question  now  be- 
fore tlie  court,  and  decide  It  in  favour  of  the  Defendant. 
Some  of  them  are  expositions  U|>on  the  12//t  Anne,  from 
'  which  our  act  is  copied  verbatim — the  ronstruction  upon 
that  act,  IS  a  construction  u|>oii  ours.  Upon  these  author- 
ities, I  submit  thi'  case  of  my  client  to  (he  court. 

Per  curiam — We  wish  for  time  to  consider  oftlils  ques- 
tion ;  and  that  a  special  verdict  or  statement  of  facts  in 
some  form  may  be  made,  that  will  put  it  in  our  power  to 
pass  judgment  hereafter,  when  we  shall  have  had  time  to 
look  over  the  authorities  cited,  as  well  as  any  others  that 
may  tend  to  throw  light  upon  the  subject.  This  was 
agreed  to  bj  the  counsel,  and  a  special  verdict  found, 
which  stated  the  abo\<-  facts,  x\fter  some  days  taken  to 
consider,  the  court  gave  judgment. 

Per  airiam — We  have  considered  of  this  case  with  at- 
tention, and  have  looked  over  the  authorities  upon  the 
subject,  as  well  those  cited  at  the  bar,  as  also  a  case  in 
3  Term,  353,  and  other  cases  found  in  the  different  Re- 
porters. We  have  in  fact,  been  averse  to  delaring  this  to 
be  a  case  of  usury  within  the  act,  because  in  that  event, 
the  principal  sum  secured  by  this  bond,  whicli  is  a  just 
debt,  will  be  lost  as  well  as  the  unlawful  interest  secured 
by  the  note,  hut  the  authorities  in  the  books  are  too  strong 
to  be  sui-mounled.  Any  shift  or  device  whatsoever,  to 
take  more  than  the  interest  allowed,  and  paiti(  ul,\i  ly  the 
device  of  securing  the  principal  and  interest  by  distinct 
assurances,  is  incompetent  to  the  purpose  of  taking  the 
(338)  case  out  of  ihe  ojieration  of  the  act.  If  the  contract  it- 
self, is  upon  tlie  whole  face  of  it,  a  contract  to  have  a 
greater  premium  than  the  law  allows,  it  is  void,  whether 
it  remains  a  parol  contract,  or  becomes  clothed  with  le- 
gal solemnities  ;  as  is  also,  every  security  or  as-,urKnre 
founded  upon  it,  whether  one  only,  or  more.  This  iwtlie 
true  meaning  of  the  act.  Without  any  adjudged  case, 
we  should  be  bound  to  decide  in  tlic  same  nmimct — were 


HAYWOOD'S   BEFORTS. 


388 


the  act  to  be  evaded  by  so  simjilc  a  contrivance  as  that  My  179C. 
ot°  taking  two  seruritle-,  the  one  for  |)niicipiil,  tlie  oilicr'"^'"^^^^*' 
for   ilie    unlawful    premium,  it   would    atiswir    no  pur- 
pose whatsoever.     The  13  doiiars  rpcei\ed,  is  above  the 
rati-  allowi-d  by  law — and  should  we  decide  that  the  con- 
tract is  not  usurious,  so  as  to  avoid  Ibe  bond,  iimnedi.ite- 
ly  the  Defendant  may  sue  for  the  double  value,  upon  the 
tast  clause  of  the  act.     Wt-ci-efore  hi  judgment  be  for  the 
Defendant,  and  it  was  entered  accoidingly. 
KyxK.— Fide  Carter  \.  Brand,  Conf.  Btp.  28. 

Executors  of  Cruden  v.  Neale. 

Plftinliff  sued  on  a  bond,  and  the  plea,  which  wasfoundedon  the  101st 
seclion  iif  the  act  nf  1777,  c.  2,  staled  in  substance  tliat  Pl:i:ntiffhad 
lemoved  from  tlie  Slate  to  avnici  assisling  in  the  war  ot  tlic  Revolu- 
tion ;  that  he  had  -.ittached  himselt  to  the  enemy,  he.  IJeid,  that  it 
Pbiiiiiff  was  a  citizen  of  this  ountry,  the  IGlst  s^c'ion,  hefort;  re- 
ferred to,  is  repealed  as  to  him,  by  several  acts  of  the  State  Legis- 
lature i  and  if  he  was  not  a  ciiizen,  but  a  British  subject,  then  by 
the  4th  a'ticle  of  the-  treaty  of  peace,  he  is  considered  as  an  alie;< 
friend,  and  entitled  to  sue  in  our  courts. 

The  plea  in  substance  stated,  that  the  PlainiifT  in  the 
year  lemoved  himself  from  this  Stale  to  avoid  giving 
his  assistance  in  the  then  war,  carried  on  against  titc 
King  of  Great- Britain,  and  attached  himself  to  the  enemy, 
&c.  and  the  plea  concluded  with  praying  judgment, 
whether  he  should  be  answered,  &c.  To  this  tliere  was 
a  deniurier  and  joinder. 

Counsel  foi-  the  Plaintiflf— It  will  not  be  denied,  and  is 
admitted  by  the  pleadings,  that  the  Plainiiff  previous 
to  the  Revolution  resid«'d  in  this  country  ;  after  the 
establishment  of  the  present  farm  of  government  he 
can  be  considered  but  in  one  of  these  two  lights,  as 
one  wiio  refused  to  become  a  member  of  tlie  new  go- 
vernment, continuing  his  allegiance  to  the  King  of 
Great-Britain,  or  as  a  citizen.  "\N  heji  a  change  ot  go- 
vernment takes  place,  from  a  monarchical  to  a  republican 
govrrnmenf,  the  old  form  is  dissolved.  Those  who  lived 
under  it,  and  did  not  chuse  to  become  members  of  the 
new,  had  a  right  to  rcluse  their  allegiance  to  it,  and  to 
retire  elsewhere.  By  being  a  part  of  the  society  subject 
to  tlie  old  government,  Ihe^  had  not  entered  into  any" en- 
gagement to  become  subject  to  anj  new  form  the  majority 
might  think  proper  to  adopt.     That  the  majority-  shall 


389  UAYW00D*3    REPORTS. 

May  1796.  prevail,  is  a  rule  posterior  to  the  formation  ot  goverti- 
^i^"^''^*-'  ineiit,  and  results  from  it.  It  is  not  a  rule  bindln!?  upon 
inatikiiid  in  their  natural  state.  Tlieie,  e\erj  man  is 
indi  pendent  of  nil  laws,  except  those  prescribed  b>  na- 
ture. He  is  nut  bound  b_v  any  institutions  I'ormed  hy  his 
(339)  fellou-nien  without  his  consent.  The  PlaitjtiflT  here  is 
not  stated  by  the  |>lea  evrr  to  have  become  a  citizen  or 
member  of  Noitli-CaroIiri«.  The  fart  is  that  he  never 
was  a  citizen.  Had  that  fact  been  stated,  we  should 
have  replied  to  it.  As  he  still  remained  a  subject  of  the 
King  of  Gi'cat-Britain.  then  although  the  intervention  of 
war  susiieiidcd  his  right  to  commence  an  action  in  our 
courts,  that  was  but  a  tempoiaiy  obstacle,  ci^asing  with 
the  wai"  which  caused  it  ;  his  right  revived  winn  the 
war  ended.  The  clause  upon  wiiicli  this  plea  is  formed 
is,  the  lOlst  section  of  1777,  c.  £.  •' Piovided,  that  no 
person  who  hath  taken,  or  shiill  take  pact  with  the  cne- 
nii''s  of  America,  or  who  hath,  or  shall  refuse,  when  law- 
fully required  theieto,  to  lake  the  oatii  of  allegiance  and 
abjuration  required  by  the  laws  of  this  Stati-,  or  who 
liath  or  shall  remove  from  this  State,  or  any  of  the  United 
States,  to  avoid  giving  their  assistance  in  repelling  the 
invasions  of  the  common  enemy,  or  who  hath  oi  shall  re- 
side or  be  under  the  dominiiui  of  the  enemies  of  America, 
other  than  su<h  as  aie  detained  as  prisoners  of  war,  nor 
any  person  claiming  by  assignment,  representation  or 
otherwise  by  or  uniler  any  such  person,  shall  have  or  re- 
ceive any  benefit  of  this  act  :  but  all  right  of  commencing 
or  prosecuting  any  suit  or  suits,  action  or  actions,  real, 
perscnial  or  niixt.  shall  be  and  is  hereby  suspended,  and 
shall  rentain  stispended  until  tlie  Legislature  shall  niako 
funher  provision  relative  thereto."  This  is  but  a  decla- 
ration of  the  Legislature  so  far  as  regarded  British  sub- 
je<  Is,  of  what  the  law  of  nations  was  ;  and  it  was  intended 
to  <>pi-rate  no  longer  than  the  law  of  nations  would  have 
opt  rated  to  the  exclusi(ni  of  the  Plaintiff  from  our  courts, 
namely,  during  the  continuance  of  the  war.  The  clause 
says,  the  Plaintiff's  right  shall  be  8us|)ended  until  the 
Legislature  shall  make  further  provision  relative  thereto; 
anil  i"  must  be  admitted  there  is  not  any  expiess  provi- 
sion made  by  the  Assembly  since  ;  but  being  made  with 
a  view  to  the  cnnlinnance  of  the  war,  ami  tliis  State  hav- 
ing afterwards  made  one  of  the  United  States  wlio  en- 
tered into  a  treaty  for  the  terniioation  of  that  war,  it  fol- 
lows, that  all  the  acts  of  our  Legislature  made  for  the 


Haywood's  beports.  ^^^ 

purpose  of  «]istres«inj;  tlie  cnrmy,  or  to  prevcHt  (lirir  J^!SJ 
etreiiiitlicriiiie;  tliemselvfs,  wei-c  (herrby  ipso  facto  wpeAl- 
ed.  Tliiiim,li  ihe  State  reiiirsentrd  in  tti.  A-scmbly 
have  not  by  tli.<t  Assembly  exjirrssly  passed  hii  ;irt  of 
repeal,  yet  the  State  lepiesentei!  rls«  «iiere  liatb  ii_a;reed 
to  and  ratified  a  public  act.  whi<  h  docs  away  mII  tlie  con- 
sequences ai'isin.s;  IVoin  a  state  of  warfare — of  which  the 
Plaintiff's  disubility  to  sue  in  this  court,  is  one.  Where  (340) 
that  boily.  with  whom  is  lodajed  tiie  sovereign  power  to 
make  a  treaty  of  p'ace,  niiikrs  such  treaty  io  aconstitu- 
tiiinal  manner,  it  is  an  act  of  the  Legislature  as  to  the 
purjiosc  of  ropealinpf  all  former  acts  of  ever-y  State  Le- 
(^islature  to  the  coniraTV.  If  is  an  act  of  the  people  of 
all  the  States,  done  by  those  who  are  constitutionally  em- 
powered t'l  do  it  ;  and  all  acts  opposed  to  lliat  state  of 
things,  introduced  by  the  treaty  must  cease,  or  each 
State  may  still  treat  as  enemies  those  with  whom  the 
treaty  directs  a  restoration  of  the  rijihls  of  peace.  Can 
a  man  be  entitlcti  to  llie  rights  of  an  alien  friend,  and  yet 
not  be  allowed  to  sue  in  our  courts  ?  Citn  any  niati  who 
lived  under  the  dominioii  of  tin-  Kii.g  tpf  Great-Britain 
during  the  time  of  the  late  vviir.  he  cntill^d  to  sue  in  this 
coui  t,  if  that  clause  is  not  repealed  by  the  treaty  ?  But 
if  this  law  is  not  repealed  by  a  discontinuance  of  the  war, 
by  mrans  of  the  treaty  and  a  restoration  of  |)eace,  yet 
certainly  as  to  British  subjects  it  is  repealed  liy  theroiirth 
section  of  the  treaty  of  fieace — creditors  on  either  side 
shall  meet  with  no  la^^ful  iniftedim-Mit  to  the  recovery  of 
the  full  value  in  sterling  money  of al!6rtH«Jjrfe  debts  Ih'it- 
tofore  contracted.  By  this  articli',  Britisli  creditoi-s  h'lve 
a  right  to  reco\er  their  debts,  and  they  cannot  recover 
them  but  by  means  of  suits  to  Ite  instituted  in  our  courts. 
This  article,  with  the  rest  of  the  treaty,  by  an  e.xi)rcss 
act  passed  in  1787.  is  made  part  of  the  law  of  the  land  ; 
and  if  the  operation  of  the  treaty  is  inconsistent  with  the 
101st  si'ciion  of  the  court  law,  it  follows  that  that  section 
is  I'epealed,  so  far  as  tlie  inconsistency  reaches  :  and  then 
the  plea  is  not  tenable,  and  ought  to  be  oxceruled  by  the 
court.  But  supj)ose  the  Plaintift' w;is  a  ciiizen  of  this 
State,  then  how  is  this  lOlsi  sectimi  to  i)f  viewed,  upon 
a  comparison  with  the  constiliiiion  of  this  State  then  Just 
estalilished  ?  If  he  was  a  citizen,  and  attached  himself 
to  tlie  enemy,  and  aided  theui  in  their  attempts  to  snhju- 
gate  the  country,  he  was  guilt  v  of  hiijh  treason — the  con- 
sequence would  he  the  loss  of  !ti«  rigiit  to  institute  an  no- 


391  UAywoou's  keports. 

May  1796.  (inn^  Judsmfiit  of  diatli,  foi fi-iture  of  estate,  and  a 
^'^"^'"^^  disability  1o  aiply  to  his  coiinliy  fin-  lelief  a,fi;aiiist  the 
injustice  «>f  Dthers  in  civil  rases,  will  be  tlieconseijuenres 
of  tlie  I'art  stated  in  the  plea.  But  can  such  a  fact  be 
picsumed  ?  Can  it  he  averred  against  a  man  wlio  has  not 
been  mnvicted  of  it  ?  Can  it  be  tried  in<lirectly  in  a(ivil 
action  ?  These  qiitstions  cannot  be  an^isvercd  in  the  affir- 
mative. Tlien  this  plea  shunlil  lia\e  stated  tin- fact  with 
such  circunistarires  as  were  necessary  to  establisli  if.  It 
('341')  should  have  set  forth  the  recni-d  of  the  Plaintiff's convic- 
titin  and  attainder.  Where  a  man  b'Comes  a  citizen  of 
a  free  country,  his  rightto  demand  justice  and  redress  of 
wrongs  becomes  at  the  same  time  one  of  his  most  rsscn- 
lial  privileges.  He  cannot  enjoy  safety  and  the  protec- 
tion of  the  laws  witliout  it.  NVithont  it  he  is  not  free, 
for  what  is  freedom  but  security  rendcied  by  law  to  the 
indi\idual.  It  is  not  denied  liut  (hat  eicry  citizen  may 
forfeit  his  ri.c;lit  to  protection  by  enorm<uis  transgressions 
against  tlie  laws  of  his  country,  vshei-e  tliey  have  exacted 
such  a  forfeiture  as  a  part  r)f  the  punishment.  A  citizen 
of  North-Candina  may  forfeit  his  riglit  of  protection  by 
tlie  commission  of  higli  feason,  liut  wlietlicr  lie  has  com- 
mitted high  treason  or  not,  can  no  otherwise  be  ascer- 
tained but  according  to  the  rule  of  the  constitution,  which 
declares,  s ic.  9.  that  no  frteman  shall  be  c<invicted  of 
any  crime,  but  by  the  unanimous  veidirt  of  a  jury  of 
good  and  lawful  men,  in  open  court,  as  heritofore  used. 
And  sec.  12.  that  no  freeman  ought  to  be  taken,  impris- 
oned, or  de|irived  of  his  freeiiohi,  liberties  or  privileges, 
or  outlawed  or  exiled,  or  in  any  manner  destroyed  or 
deprived  of  life,  liberty  or  propei-ty,  but  by  the  law 
of  the  land.  A  citizen  if  this  country  before  he  can  be 
subjected  to  the  punishment  of  treason,  or  to  the  disabili- 
ties consequent  upon  it,  must  he  convicted  by  a  jury  of 
his  neighbourhood,  ujion  the  previous  accusation  of  a 
grand  jury  of  his  nfighbours:  also  upon  a  trial  before  a 
court  appointed  by  law,  Col- the  purpose  of  seeing  that  he 
has  every  legal  advantage  the  law  entitles  him  to.  He 
is  not  to  be  deprived  of  his  liberty,  or  of  his  rights  essen- 
tial to  its  enjoyment,  but  b_\  the  law  of  the  land.  And 
what  is  the  law  of  the  land  ?  Such  acts  of  the  Legisia- 
Inre  only  as  violate  none  of  the  rules  laid  down  in  the  con- 
stitution— such  as  allow  the  citizen  the  privileges  there 
secured  to  him — acts  iiKousistent  with  the  rights  of  free- 


HAYWOOD'S    UEP011T3. 


392 


men  as  derlaicd  in  the  coiistiiiiiiDii,  wliic'i  take  away  ^'"^ '''^^' 
tltcir  constitiitioiiiil  ])r-iv  ili'gPH.  wliicli,  in  s!i»it,  dcjirive 
a  mm  of  Ills  lilc,  or  of  llic  inrans  of  |)!'oterti'iii  by  an  iip- 
pliciitioii  to  ilh'  liiWH  of  his  (•(•uiilrj' f>r  redress  r,f  wi'on^s, 
willw)uta  |irin  ions  trial  by  jury  and  a  coiivittioti  by  tlioin, 
art'  not  laws  of  the  land — suc.li  are  acts  not  atitliorizi'd 
by  llie  coiistitiition — they  hiivo  no  claim  to  the  t>bfdiencn 
or  supiioi  t  of  the  citizen  as  laws — iliey  are  void.  And  if 
the  section  in  question  can  be  iriiidi'  to  licar-  no  othci- 1  oii- 
strnciion  llian  that  oC  taking  away  a  cilizeirs  ri.^ht  to  sue, 
Lel'oie  uia!  and  conviction  in  a  coiiHiitulion;il  way,  for 
theofTcnce  tu  wiiiclniuch  <Ie|)iivatioii  is  annexed  as  a  pnn- 
isluuenl,  then  i  liiinibly  contend,  that  it  is  void  in  itself,  (342) 
and  of  course  this  plea  framed  npon  it  of  no  valiiUty  to 
tiiiider  the  Plainiirf  from  nciintaininu;  his  action. 

E  contra — It  was  ari;n'  d  :har  the  1  Ust  sec.  of  1777, 
ch.  2,  \\'as  intended  to  reacii  farther  than  the  law  of  na- 
tions wnnid  of  itselt'iiave  extended — the  disahility  to  sue 
created  by  that  would  have  ce;vsed  with  ihe  w,ir — ihe  Le- 
gislature intended  tlial  persons  who  liud  r(\si(led  here,  and 
been  foslei-ed  and  protected  by  the  country,  and  who  af- 
terwards in  the  time  of  its  distress,  ungratefully  aitach- 
e.d  themselves  to  its  enemy,  should  as  they  separaled  'liem- 
sclves,  remain  so,  unless  in  such  special  instances  where, 
at  a  future  day,  (lie  Legislature  might  be  induced  lo  make 
a  special  iiilerlerence.  Willi  this  view,  the  disabilities 
are  to  ciwitinne  uniil  the  Legislature  shall  otherwise  jo'o- 
vide.  All  subsc(|Mcnt  Legislatures  have  been  of  ihe  sainc 
opinion none  of  them  have  ever  passed  any  act  of  re- 
peal— this  act  is  yet  in  force,  unless  repealed  by  the  trea- 
ty of  peace  :  but  in  triilh,  tiie  treaty  does  not  lejit-al  but 
rather  confirms  it.  The  fifih  aiticle  jirovides,  that  pei-- 
sotis  of  other  descripiions  than  that  of  British  subjects, 
or  of  pirsons  resident  in  districis  in  possession  of  his 
3liijesty's  arms,  who  have  not  bfu'iie  arms  against  iha 
Uiiiied  States  ;  which  includes  all  such  persons  as  ha\e 
left  the  country  and  attached  tliemsehes  to  the  eiiiiii)", 
bliall  have  liberty  to  go  to  any  part  of  the  United  Slates 
and  there  to  remain  twelve  months  unniolesteil,  in  their 
endeavors  to  obtain  the  restituiion  of  such  of  llieir  estates, 
rights  and  propertii  s,  as  may  have  becii  confiscated — • 
this  is  all  tUiit  i-;  Hfipuiated  in  their  fa^or.  They  are  to 
be  received  as  suppliciii.ts  for  the  les'ilution  of  their 
rights — these  lights  are  not  to  he  restored  hut  by  the  free 


393  HAVWUOu's   REFORiS. 

M»y  1796.  cdiseiit  oltlic  Li'gislaturc.  Tliis  j)art  of  the  tieaty  ad- 
''^"""^'^  niits  ilic  validity  ol'tlie  laws  (Icpriviiifj;  lliem  of  their  rights. 
It  is  cniiloriiialory  of  the  ijcts  on  that  head.  If 'hey  have 
been  subjected  to  the  di-ibiliiy  of  commencing  «nits,  this 
treaty  stipulates  no  iiiire  for  ihein,  than  that  they  shall 
have  an  opportiiiiiiv  of  interceding  for  its  removal.  If 
persmis  of  the  I'luintifT'^  des<"ri|)tion  aie  entitled  to  re- 
cover their  debts  <  iiMlrarted  bonajide  before  the  enil  of  the 
war,  yet  that  in  not  incompatible  witii  (he  plea.  He  may 
be  entitled  lo  llie  <lebt,  and  as  yet  have  no  remedy  for  it. 
It  is  not  new  in  law  to  have  a  right  witlimjt  remedy. — 
The  sovereignty  of  the  country,  from  motives  of  pitlicy 
and  pnblic  utility,  frequently  deny  a  reiwdy  to  acknow- 
li'dgi'<l  I  ights,  sonielinius  for  a  short  time  only,  sometimes 
forever.  In  these  instances,  their  riglit  to  do  so,  has  ne- 
(343)  ver  been  questioned.  They  have  a  right  »o  l)e  guided  in 
the  adiipt'on  of  public  measures  by  a  regard  to  the  puh- 
*  lie  hapjiiness,   and  to  deny  upon  that  ground  to  an  indi- 

vidual, .V hat  it  would  sci'u  Just  to  allow  iiim  in  common 
with  other  citizens,  merely  because  it  is  promotive  of  the 
public  advantage,  to  deny  him  a  remedy  in  a  case  thus 
circumstanced.  The  sovereign  power  of  e.\ery  country 
is  the  iirojier  judge  of  the  cases  wliere  such  remedies 
ought  to  be  denied.  A  debt  barred  by  the  act  of  limita- 
tions, is  an  existing  debt,  not  extinguished  by  length  of 
time,  and  cajiable  of  acquiring  a  remedy  upon  easy  terms, 
yet  the  law  denies  a  remedy  u|)cni  motive?,  of  policy.  An 
infant  may  cinitract  a  di  bt,  and  a  creditor  be  entitled  to 
a  remedy  against  him — here  the  transaction  is  not  void, 
the  debt  exists,  and  the  slightesi  assent  to  the  contract 
when  of  age,  revives  it.  In  the  case  of  cmtlawry,  the 
outlaw  for  any  injury  done  to  his  pirson,  is  entitled  to  a 
satisfactiim,  hut  not  to  any  remedy,  till  his  outlawry  be 
removed.  Where  a  treaty  is  made  b<-tvveen  two  nations 
against  confiscation  of  debts  in  the  event  of  war,  the  ci- 
tizens of  the  one  nation  have  a  right  to  th<ir  debts  against 
the  citizens  of  the  other  ;  but  the  sovereign  power  may 
deny  them  a  remedy,  and  frequently  will  deny  it  even  af- 
ter the  war,  until  the  cause  be  removed.  Many  nther 
examples  might  be  given.  So  that  if  it  h-'  taken,  that  the 
Plaintirtis  'me  of  ihosr  persons  who  is  entitled  to  nis  debt 
under  the  4lii  article  of  the  treaty,  th.it  is  not  conclusive 
to  prove  him  eutith-d  lo  C(HOe  into  this  ourt  for  it  befjrc 
a  repeal  of  the  lOlbt  section  of  the  court  law.     The  Le- 


HAYWoou's  nEi'Oirrs.  •'^94 

gislaltire  liad  Ihe  pnwi-r  to  continue  the  suspension  ofliis  May  1796. 
right  even  until  lliis  time,  and  in  doiiif;  so,  tliey  may  have '■^^^''"'*^ 
acleil  u|ion  very  siifiicieut  reasons. 

Per  curiam — It  is  not  stated  in  (he  plea,  noi-  dearly 
admitted  at  the  hae,  whether  the  Piainlin' was  ever  a  ci- 
tizen of  this  country,  or  only  resided  here,  in  tlietimcof 
the  foiiriaiion  oT  the  new  government.  If  he  only  resi- 
ded lure,  and  ueM'i'  liecanie  a  i-ilizeii,  lie  is  to  he  consi- 
dered as  a  Hritish  sidyect ;  and  tliat  perhaps  nuiy  make 
his  case  very  diflferent  from  that  of  a  citizen  who  attach- 
ed liiinself  to  an  enemy,  and  took  up  arms  against  the 
conntiy. 

Counsel  for  the  PJaiuliff— He  lle^Cl'  was  a  citizen — 
I  lie  counsel  on  the  Other  side  cadnot  say  he  w.is — tlie  |)iea 
does  not  state  him  to  have  heen  a  citizen  at  the  time  of 
his  departure. 

Per  ciirlnm — We  will  take  lime  to  consider  of  the  plea, 
;>nd  u;i>e  jtnli^inent  sometime  befort-  the  end  of  the  term. 
Alter  a  few  days  tiiey  t^ave  jiidi^snent. 

Per  curiam — All  persons  in  (general,  as  well  foreign-  f^.A\ 
ers  as(iliy,ens.  may  coi»e  into  tliis  (otirt  to  ri:ci)ver  rights  ^'^  - 
withheh),  and  to  obt^iin  satisfaction  for  injuries  done,  un- 
less wlii'ie  they  ai-e  subject  to  some  dis.i'uility  the  law  im- 
poses. l'"()rei,u;ners  arc  in  general  entitled  to  sue,  unless 
a  war  exists  between  our  coinitcy  and  tlieiis.  Tlie  101st 
siiti<ni  of  177',  c.  2.  is  ceitainly  repealed  as  to  all  Bri- 
tish subjects,  by  the  4th  article  of  the  lieaty  ;  w!ii<'Ii  is 
to  be  regarded  as  law  p:ii  amount,  the  acts  of  any  Slate 
lA'gisl.ilure  to  the  contf  ary,  until  that  treaty  shall  be- 
come suspended  by  the  so»er<  i.:nn  authority  euliusted  with 
the  power  to  suspend  it.  E:ich  department  of  govern- 
ment empowered  to  do  a  soxereigu  act  relaiive  to  the  af- 
fairs of  the  government,  must  in  doing  that  act,  estab- 
lish what  the  whole  peoj.lp.  aod  eveiy  State,  must  be 
bound  by  as  done  by  competent  antiioriiy.  It  is  also  re- 
pealed liy  1787,  c.  I,  declaring  this  article  to  bo  a  part 
of  the  law  of  the  laud.  As  to  liritish  subjects,  it  is  very 
much  to  be  doubled,  whether  tlie  met c  act  of  terminating 
ilie  war  by  a  treaty  of  peace,  did  not  repeal  this  clause. 
I'hat  restores  tin  ni  with  regard  u>  this  couud'y.  to  the 
ronditiini  of  alien  iViend.-,,  and  to  all  the  rights  belonging 
fo  that  (  haraclcr,  one  of  which  is,  thcri<ht  (d' commenc- 
ing a  prosecution.  It  is  incompatible  witli  astate  if  na- 
ional  IViendship,  and  is  a  cause  for  war,  if  the  citizens 
50 


395  Haywood's  reports. 

May  l796.Qf  gn„f|,pp  coiiiitpy  are  not  allowed  to  sue  Tor  and  obtain 
-^""'^^  rcdifss  of  WTon.e;s  in  our  courts.  But  however,  this  may 
be,  Brilish  subjects  by  tlie  4tli  article  of  the  treaty,  are 
to  be  entitled  to  recover  their  debts,  and  this  they  can- 
not do  witlinnt  instituting  suits,  (^uando  aliquid  conce- 
ditur,  conceditur  ut  id,  sine  qua  non  pervenitur  ad  ilhtd. 
The  PliiiiitiD'is  not  stated  by  the  plea  to  have  been  a  riti- 
zc»  (  we  cannot  say  he  was — but  say  he  was  a  citizen, 
the  lavis  may  suspend  the  right  of  suing  for  a  certain 
time,  or  until  a  certain  |ieriod,  either  to  all  the  citizens 
with  respect  to  certain  cases,  as  was  done  in  1783  ;  or 
to  a  description  t)f  citizens  coming  under  particular  cir- 
cumstances, a^  citizens  for  instance  who  had  notori- 
ously joined  the  enemies  of  the  country.  It  would  have 
been  equally  impolitic  to  have  suffered  them  to  recover 
in  the  time  of  war,  although  they  could  not  be  arrested 
so  as  to  be  convicted  of  treason,  as  to  have  suffered  a 
British  subject  to  recover.  Tiie  reascm  for  excluiling 
the  latter,  Jipplied  with  equal  force  to  the  exclusion  of  the 
former.  The  fact  of  joining  the  enemy,  upon  a  plea  in 
disability,  might  be  ascertained  by  a  jury  as  well  as  any 
other  fact.  This  would  not  be  ascertaining  a  fact  for  the 
(345)  purpose  of  punishing  the  party  for  his  treason,  but  for  the 
purpose  of  excluding  him  for  tiie  present  from  our  courts 
of  justice.  In  the  same  manner  as  the  fact  of  being  an 
alien  enemy  is  found,  and  operates  when  found.  This 
clause  seems  to  have  been  made  with  a  view  to  the  war 
then  cariying  on,  to  prevent  those  inimical  to  us  from 
getting  into  their  possession,  any  of  the  wealth  of  the 
country,  which  might  rnal)le  them  to  fight  us  with  more 
advantage.  Considering  it  in  tiiis  light,  it  would  seem 
as  if  the  clause  itsell'  should  expire  with  the  war,  the  ter- 
minating that  being  a  providing  otherwise  within  the 
words  of  the  act,  anil  tiiat  termination  effected  by  those 
who  were  vested  with  jiowcr  to  do  that  act  of  sovereignty 
that  WHS  absolutely  binding  upon  every  State,  noiwith- 
stattdiog  any  jjaiticnlar  act  of  the  Slate  Legislature  to 
the  contrary  remaining  unrepealed  by  the  Stale  Legis- 
lature. But  there  are  sundry  acts  of  (In'  Legislature, 
which  have  repealed  this  clause  with  respect  to  the  greater 
number  of  citizens  who  had  fallen  under  its  operation. 
B^  1783,  c.  6.  all  manner  of  treasons,  misprisions  of  trea- 
son, felony  oi  misdemeanor,  committed  since  the  4th  July, 
1776,  arc  pardoned  and  put  in  total  oblivion  :  but  that 


HAYWOOD'S   KEPOKTS. 


396 


act  is  not  to  pardon  or  discharge,  or  give  any  benefit  to  **'y  ^^^^• 
persons  wiio  liave  taken  commissions,  or  have  been  de-  ^■^■"^'^'*-' 
nominated  officci's,  or  acted  as  such,  or  to  such  as  have 
attaclied  (iiemsclves  to  the  Britisli  and  continued  without 
the  limits  of  the  State,  and  returned  within  twelve  montlis 
befoie  the  passing  the  act :  and  nothing  in  that  act  is  to 
be  so  constiued  as  to  bar  any  citizen  from  his  civil  action 
for  tlie  recovery  of  debt  or  damages.  By  this  act  all  the 
citizens  of  the  State  are  pardoned  all  treasons  and  mis- 
demeanors, except  those  wiio  have  borne  offices  in  tiie 
enemy's  service,  or  having  been  in  their  service  as  pri- 
vate men,  had  not  returned  within  12  months  before  the 
passing  the  act.  Now  if  a  disability  to  sue  is  inflicted 
as  a  punishment  for  attaching  himself  to  the  enemy,  then 
the  pardoning  of  that  must  of  course  take  away  t^ie  dis- 
ability, (^uando  subtoUitur  causa,  subtolHtur  etiam  effectas. 
Then  tiie  101st  section  is  rei)ealed  as  to  all  citizi  ns  but 
those  of  the  two  descriptions  mentioned  in  the  act.  By 
1784,  c.  20,  all  iiersons  who  attached  themselves  to  the 
enemy,  or  aided  tliem  in  tiie  prosecution  of  tlie  war,  are 
disabled  to  hold  sundry  ofiSces  specined  in  the  act  ;  and 
there  is  a  proviso  annexed,  that  that  act  shall  not'  be  so 
construed  as  to  permit  the  return  to  the  Slate  of  any  per- 
son who  acted  as  an  otBcer  after  being  a  resident  of  the 
State,  or  who  had  not  submitted  to  the  laws  of  Ihe  State  ^  ^« 
before  the  ratification  of  tlie  definitive  treaty.  The  Le-  ^  ^ 
gislatui'e  snpiiosed,  and  therefore  [irobably  intended  that 
the  general  imjilication  arising  from  this  act  would  be, 
that  all  persoius  tiierein  described,  would-  be  entitled  to 
all  the  rights  of  citizens  except  those  denied  tiiem  in  the 
act,  and  of  course  the  right  to  return  to  this  State,  unless 
binderad  by  an  express  clause,  which  they  have  made  as 
to  officirsonly.  If  sucli  general  implication  was  intended, 
and  is  restrained  only  as  to  officers,  it  f<dlovvs  that  all 
other  j)eisons  are  restxired  to  all  the  riglits  of  citizenship, 
except  tiie  rigiit  of  beingelected  to  certain  offices;  and  then 
the  101st  section  of  1777,  c.  2,  is  repealed  as  to  all  but 
those  who  had  borne  commissions  in  the  enemy's  service, 
and  particularly  as  to  one  description  of  persons  vvho 
were  conlinueil  subject  to  it  by  the  act  of  178S,  namely, 
those  who  had  attached  themselves  to  tiie  enemy  and  re- 
mained without  tiie  limits  of  the  State,  and  had  not  re- 
turned twelve  months  before  the  18th  of  April,  1783. — 
To  the  same  effect  with  the  act  of  1784,  is  the  act  of  )  785, 
-.  11.     Supposing  the   Plaintiff  to  have  been  a  citizen 


39!7  uaywood's  kkports. 

May  irge.  who  attaclicd  liiinsclf  to  tlie  enemy,  without  having  borne 
'^^""''^^  a  (oiijniissioii  in  tlicir  sei\ice,  or  liaving  bomo  a  com- 
missidi)  li.  have  siibniitted  to  the  laws  of  the  Staff  hi-fore 
the  ralificatioii  of  the  definitivf:  f real},  hois  enJith'il  upon 
the  construction  of  all  these  acts,  now  to  institute  his  .suit, 
and  this  plea  does  not  stale,  either  that  he  bore  a  com- 
mission, or  that  he  did  not  submit  to  the  laws  of  tiie  State 
hefon^  the  ratification  of  the  defiuiti\e  treaty.  It  is  un- 
necessary to  consider  how  far  the  section  in  quislion  is 
repealed  by  the  termination  of  the  \\ar,  independent  of 
any  particular  acts  of  the  Legislature — for  if  ihc  IMain- 
tilTwHsa  ciliKtn,  then  make  ilie  worst  of  the  case,  and 
by  the  acts  mentioned,  the  lOlst  section  is  rejiealeil  as  to 
him — it  not  being  pretended  that  lie  is  to  bedistingiiished 
by  eitlier  of  llio  disqualifying  ciiaiacters  before  mentioned. 
If  he  was  a  British  subject,  llien  his  right  to  sue  for  an- 
tecedent debts  is  revived  by  the  4tb  article  of  the  treaty, 
and  this  is  such  a  debt.  Let  liie  plea  in  abatement  be 
overruled,  and  the  Defendant  answer  o\cr. 

There  were  several  cases  depending  in  this  court  upon 
the  same  pleas,  and  upon  tliis  npinion  of  the  court  being 
given,  the  pleas  were  withdrawn  and  the  Defendants 
jilcaded  in  chief. 

At  Hillsborough,  October,  ir9G,  the  three  first  causes 
on  the  argument  docket,  were  standing  upon  pleas  in 
abatement,  and  demnrrer  thereto  for  the  same  cause,  and 
.  tbf  pleas  v\ere  overruled  ;>er  ^^  1 1,1,1  amb  and  IlAywoou, 
'-"'-'  without  argtitncnt,  upon  the  autinn  it\  of  the  foregoing 
decision.  Also  at  Fayetteville,  1796,  a  client  of  Mr. 
Williama,  who  had  joinetl  the  enemy  in  the  time  of  the 
late  war,  and  who  had  given  notice  of  moving  for  a  writ 
of  ertor,  was  suspended  by  a  plea  in  disability — that  pica 
was  now  overruled  and  he  was  set  at  liberty  to  proceed. 

^  Anonymous. 

in  a  bill  by  a  wife  for  Alimony,  it  is  must  proper  tliftt  the  luisbnnd  be 
held  to  bail  at  tirst  ;  hut  if  that  has  not  been  done,  upon  proper 
iiflRilavils  by  the  wile,  the  l.iisbaiul's  property  may  be  sequestered 
until  he  gives  security  tor  the  perlormance  of  the  df  cree. 

A  bill  lor  Alimony  was  liled  by  ihe  wife,  and  no  secu- 
rity had  been  retpiired  of  the  husband.  I'lie  bill  had 
been  served  on  him,  and  now  an  affidavit  was  made  on 
the  part  of  the  wife,  setting  forth  divers  circumstances, 
tending  to  shew  that  he  was  preparing  to  remove  him- 


39ft 

uaywood's  reports,  ° 

self  and  liis  piopirty  ;  and  it  was  moved  on  hoi"  ''''luvir.  ^^^^ 
that  somi-  pctHnM  lie  jip|iointo<l  to  take  into  pn'sos^iiun  so 
imicli  (if  (lie  prdpcrtj  hk  wouhi  l)e  siifficipi.t  t(i  safisfy  the 
decree  tlio  roiirt  would  j)iolj;ilily  make,  to  bo  reloased  on 
Ills  giving;  sccui-ii)'  til  perfdini  tlic  di-rree.  This  was  ur- 
ged (i])oii  the  piohaliilitv  there  was,  as  made  out  hy  the 
alHdavK.  (h.it  shoiihl  the  court  only  issue  piotess  id  ar- 
rest Iiiiii  and  hohl  liiiii  to  haii.  that  he  wiinld  keep  ■lut  of 
the  way  (ill  he  had  disposed  of  his  property,  atid  then 
abscotid.  And  the  IMaintiflT's  eoniisel  said,  that  this  was 
m>  new  motion,  that  liie  «anie  iiad  heeo  done  at  Htlifax, 
in  the  case  of  linrrow  v.  Barrow,  sonii-  years  ago,  where 
the  lourr  orilercd  tlie  property  to  l:e  sequestered  under 
tliat  part  of  the  act  of  1782,  cli.  11,  wliere  it  is  provided, 
that  during  tlie  dependence  of  the  suit,  at  any  lime,  tlie 
court  may  require  liirther  security  from  a  Derendant.  or 
in  failure  tliereof,  make  nseof  sucii  prrsonai  jti-oiess  as 
was  fornu'rly  used  by  the  court  of  <  hancery  lield  in  this 
State,  and  incident  to  the  cbancery  jiirisdiclion  ;  and 
shall  in  all  cases  ha\c  power  to  order  such  process  to  en- 
force their  sentences  or  de<-rees,  as  have  iisnally  behnig-  ' 
ed  to  courts  of  chancery. 

E  contra — It  was  argued,  that  tlie  act  empowers  the 
court  to  require  new  .security,  or  to  issue  a  ne  exeat,  Init 
not  to  interfeie  with  his  projierty,  wliicli  is  not  to  be 
touched  until  after  the  I'iaintift'hath  eslablishtd  her  claim 
and  obtained  a  decree.  'I"'liis  court  cannot  issue  process 
to  take  away  a  man's  property  but  in  cases  where  a  de- 
cree is  lobe  satisfied.  Slionid  the  property  of  tlie^De- 
feiidaiit  be  now  seized  and  taken  out  of  ids  possession,  af- 
ter continuing  in  tiie  hands  of  the  sequestrators  lor  sonic 
time,  it  niay  appear  upon  the  hearing  of  tliis  Cause,  tliat 
she  is  not  enliiied  to  any  decree — and  will  the  court  up- 
on the  mere  probability  that  siie  may  obtain  a  <lecret'.  pio-  (34S) 
<;eed  to  seize  his  property  as  if  slu'  had  already  obtained 
it?  No  man  will  be  safe  under  such  a  practice,  for  in 
every  case  of  a  suit  foi'  alimony,  Hie  w  il'c  may  make  such 
an  alHdavit,  and  cause  the  husband  to  be  iiarasseil  hy  a 
seizure  of  his  property,  upon  a  suggestion  of  Ids  intend- 
ing to  abscond  with  his  property. 

I'er  atrium — It  woidd  have  been  much  better  had  he 
hoeii  held  to  bail  at  first.  The  answer  denies,  liuf  faint- 
ly, some  oC  the  material  charges  in  ijie  bill.  It  is  possi- 
f'le  .sheinav  be  entitled  to  a  decree.     The  allidavit  shows 


399 


HAWVOOU  S  lllil'OBTS. 


May  1796.  |,p  jg  probably  (levisiiia;  means  to  defeat  the  decree  wlien 
"^■''T'^*'  it  shall  be  given,  and  tliat  be  is  about  to  absrond.  Sball 
we  sit  still,  and  see  iiim  take  bis  measures  to  dfleat  (he 
derree,  if  any  should  be  given,  and  not  fake  any  steps  to 
prevent  it?  The  court  will  surely  do  sometbing  to  se- 
cure the  Cotn|ilainant  the  benefit  of  any  decree  that  may 
bereaftei'  bf  given  in  bee  favor.  The  common  process 
of  a  ne  exeat  or  capias  to  arrest  and  bold  to  bail,  it  is  said, 
and  indeed  it  is  very  probable,  will  not  answer  the  pur- 
pose. Should  bis  propcrtv  be  seized  under  the  order  mo- 
ved fur,  lie  may  be  restored  to  the  posses-iion  of  it  again, 
by  giving securiiy  to  perform  the  decree.  All  the  differ- 
enre  betueen  this  sequestration  and  that  used  in  the  Eng- 
lish courts  is,  that  this  is  more  speedy  than  theirs  where 
there  must  first  be  a  Sergeant  at  arms,  and  a  return,  &c. 
a  practice  not  always  CfHiijietent  bi're  to  effect  the  purpo- 
ses of  justice,  because  of  our  local  situation.  The  prac- 
tice of  tills  court  was  decided  t'l  be  according  to  the  pre- 
sent motion,  two  or  tlirec  years  ago  at  Halifax,  in  the  case 
of  Barrow  and  Barrow,  by  Judge  Asuii  and  Judge  Wil- 
XIAMS.  They  knew  what  the  practice  was  in  our  court 
of  ciiancery  before  the  Re\ohition,  and  probably  grounded 
that  order  upon  the  clause  cited  from  the  act  of  1782 — 
We  think  therefore,  that  upon  the  strength  of  that  prece- 
(5ent,  the  pri'sent  motion  should  lie  allowed.  The  court 
then  enquired  into  the  amount  of  the  Defendant's  fortune, 
and  ordered  him  to  give  security  foi'  the  performance  of 
the  decree,  in  the  sum  of  £l()(iO — and  until  be  did  this, 
that  bis  property  to  that  amount  should  be  sequestered  by 
a  person  nameil  by  them  for  tiiat  purpose,  and  ordered  a 
writ  to  issue  accordingly. 

Note. — Miter  where  tliere  is  only  :i  suggcstinn,  that  the  husband  i-; 
wasting  liis  property.     Spiller  v.  Spiller,  post  482. 

Smith  and  others  v.  Estes. 

This  cause  bad  been  i-eferred  to  the  Master  to  report 
upon,  and  stiitc  tiie  amount:  be  had  given  notice  to  Es- 
(349)  '**  cf  tht  time  of  taking  the  lepoit,  but  had  not  actually 
give!"  any  notice  to  Smitfi.  A  time  bad  been  talked  of 
by  the  JVIiister,  which  Sviith  said  did  not  suit  him,  he  be- 
ing then  obliged  to  attend  'lie  General  Assembly  on  pub- 
lic business.  However,  in  his  absence,  the  Master  pro 
ceedcd  ex  parte,  and  made  a  report.    All  this  wasdisclo- 


U\Y WOOD'S  IlEPOUTS.  ^ 

„....•  t-  i-        f      May  1796. 

scd  to  llic  cnuit  by  wlliuavit,  m  support  ot  a  motion  i'»'' ^_^^->,->^ 
setting  iisiile  the  icpnrt.     It  was  insistt'il  in  opposition  to 
the  motion,  tliat  Smith  should  i»ave  made  his  oxceptions 
to  it  ill  due  tinio.  and  init  at  this  late  period,  by  way  of 
aflidavit,  taken  ex  2)arte,  and  introduced  puchk-nly. 

Per  curiam — By  the  practice  cstablisbcil  here  since  the 
creation  of  Conits  of  Equity,  in  tlie  year  1782,  when  it 
is  referred  to  the  Master  to  take  an  account,  he,  at  the  in- 
stance of  either  paity,  must  issue  a  notice  a|)pointing  a 
day  for  attendance.  This  notice  must  be  served  by  the 
pai ty  procuiiiig  it.  If  the  party  cited  do  not  appear  on 
the  day  appointed,  lie  shall  tnit  proceed  lo  take  the  ac- 
count in  his  absence  ;  for  perhaps  he  is  sick  or  prevent- 
ed by  sonif  unavoidable  accident,  or  has  not  been  able  to 
prejiare  himself  to  take  the  account.  But  then,  a  second 
notice  ajipoiiiting  another  day,  shall  be  issued  and  served 
in  like  manner;  and  then  if  the  party  noticed  fail  to  ap- 
pear, the  account  shall  be  taken  ex  parte.  In  the  present 
instance,  this  practice  was  not  observed,  and  therefore  the 
leport  must  b?  set  aside  ;  and  this  is  the  more  pro|)er. 
as  the  time  ajipointed  by  the  Master,  was  known  to  be  in- 
convenient for  Jfr.  Smilk,  and  as  he  had  not  been  actual 
ly  mitired  at  all.  Where  a  report  is  regularly  taken,  but 
the  items  of  the  account  are  improperly  allowed  or  dis- 
allowed by  the  Master,  e.\cepfioiis  filed  to  the  report  are 
propel-  ;  but  where  the  M  ister  proceeds  irregularly  to 
take  the  account,  as  in  the  present  instaijce,  the  objection 
goes  10  I  he  whole  re|iort.  and  may  be  made  out  and  sup- 
ported by  affidavit,  as  has  been  done  in  tlie  present  case. 

Note, — Upon  tlie  subji-ct  of  "rcf'trence  to  masti-r;.nf!  report,"  sec 
Nash  V.  Taijlor,  2  Hay.  125.  Anonymous,  Ibid  157.  Smil/i  v.  Esief 
W  Malkt,  Jliid,  156.  Smith  &  others  v.  Malld,  Ibid,  182.  rUompsan 
V.  U'DanUt,  and  Jeffi-evs  v.  TuTborou^'n,  2  //atv/cs,  307. 


WILMINGTON,  MAY  TERM,  1790. 
The  following  order  was  made  in  substance  : 

I'er  curiam — It  is  ordered,  that  the  following  hereafter 
Itc  the  rule  with  respect  to  <lepositions.  When  eitlier 
party  has  filed  his  deposition.s,  he  shall  apply  to  the  Mas- 
ter for  a  notice,  who  shall  issue  one  which  shall  besi'rved 
a  convenient  time  before  the  day  appointed  by  the  notice 


401 


HAVWOOU'S    nEPORTS. 


May  \796.  on  t|,(;  opposite  party  ;  and  on  that  day  the  Master  shall 
^"^^^^"^^  i-xaniiiic  the  siiffirieiicy  (if  (lie  iiolirrs  iiptm  whicli  the 
(350)  depiisiiioiis  \v<  re  t;ik('ii,  and  the  lei^iilarity  Dl'takinfj  them; 
and  such  ((hji'ctiriis  a.y^ainst  the  n-adiiis  the  depositions 
at  the  +i«'ariiij!:  as  the  party  ran  i)iake,.sliall  be  considered 
by  the  Ma-;li'i'.  and  eitiiec  aHowod  ami  overruled  hy  iiim, 
subject  hi)\vi'\er  bv  appial  ofeitlier  party  In  lie  brouglit 
before  (hi-  court  at  the  ensnitiij  term.  In  case  r»f  ovei"- 
niling  the  objection,  and  no  appeal,  the  deposilinns  siiall 
be  ciinsidei  I'd  to  have  been  properly  taiien,  and  shall  be 
I'ead  at  the  liiaiinsj,  and  no  objedicin  shall  be  llien  al 
lowed.  If  the  ohjii  tion  shall  be  allowed  hy  tiie  Master. 
and  no  appeal,  the  deposition  shall  be  suppressed  and  not 
allowed  to  he  offered  at  the  liearing.  If  these  jirecau- 
tions  ho v\ ever  are  not  taken,  ihen  the  depositions  are 
liable  t«  objection  at  the  hearing,  as  before  the  making 
of  tiiis  order. 

Kenon's  Executors  v.  Williamson,  Morris  et  al. 

An  injunction  against  a  judgment  at  law,  had  been  dissolved,  and  up- 
on the  comir.g  out  of  llie  execution,  ttie  Dcfeiulants  at  law  isbibit- 
ed  tluir  iiill,  pmwnij  a  reconsideralioii  of  the  sentence  of  dissolu- 
tion, and  un  injunction  in  tlie  menn  time,  ugaiiist  the  execution. — 
'I'his  injunction  w:is  granted  by  a  Judge  in  vacution,  and  tht-  bill  was 
filed  and  ail  answer  was  put  ill.  This  is  nut  a  bill  of  review,  buHi 
court  will  support  it  as  a  petition  for  a  rehearing. 

One  question  in  tliis  case  was,  whether  the  jiroceeding 
upon  wliich  an  injunction  had  been  issued,  was  to  be  coic 
sidered  as  a  bill  of  review  or  not.  The  FlaintifTs  at  law 
had  obtained  judgment  upon  the  bond  of  tlie  Defendants. 
for  a  large  sum  of  money,  conditioned  to  indemnify  them 
against  the  creditors  of  tlie  Company,  of  which,  the  tes- 
tator had  been  a  partner.  Tlie  D'fendanls  had  obtained 
an  injunction  against  tiiat  judgment,  and  then-  had  been 
a  dissolution  of  tiie  injunction  a.s  to  part  of  tiie  juilginenf. 
upon  coming  in  uf  the  answer,  and  a  re|iort  made  hy  tlic 
Mastei'.  In  this  leport  it  was  statcii,  that  two  tlebts,  one 
in  Virginia, the  oilier  in  iliis  State,  not  yet  recovered  by  the 
creditors,  weredelds  to  which  that  Company  were  liable. 
As  to  them  tlie  injunction  v\as  continned.  At  a  following 
term,  the  iMaintilFs  at  law  produced  tlic  records  of  lecovu 
ries  in  these  two  suits,  and  nioxed  fur  a  further  dissolution 
tu  the  aiuouiit  of  those  judgments,  being  about  jLllCM. 
Upon  he  motion,  the  court  look  time  to  advise,  and  alter- 


HAYWOOn's    UEPORTS.  402 

wards  dissolved  tiio  injimrtion  as  to  the  amount  of  tiicse  May  irPe- 
judgments.  This  dissolution  took  place  in  !!ic  vacation,  ^■^•'>''^«^ 
to  hf  entered  as  of  the  prcccdinj^  term  ;  and  afffrwards 
in  llie  same  vacation,  npon  coniinu;  out  of  the  i-xecution, 
the  Defendants  at  lawexhibitcd  tlie  bill  in  question,  stating 
their  non-liabilit}'  to  indemnify  the  Plaintiffs  at  law  a- 
i^aiiist  tliese  debts  by  the  terms  of  the  (onirart — these  be- 
ing debts  rioi  contjacted  by  tliat  Com|)any,  bui  by  tlie  de- 
ceased as  partnri- of  :i  Comiiany  under  anothee  firm,  of 
which  Com|)iiMy,  irilLiumsmi  wis  also  a  partner — pray- 
ing a  reconsid<'calion  of  the  latter  sentence  of  dissolution, 
and  an  injunction  in  fiie  mean  time,  against  the  execu-  ('(^ci-s 
tioii  at  law.  This  injunction  wasgi-anled  as  praye<l  for, 
by  a  Judge  in  vacation,  and  the  bill  filed  and  an  answer 
put  in.  The  counsel  fir  the  Plaintiifs  al  law  now  moved 
for  a  dissolution  of  the  latter  injunction,  and  that  the  bill 
upon  which  it  was  granted  might  b<'  now  taken  ihto  con- 
sideration and  disposrd  of.  As  a  bill  of  review,  he  said, 
it  was  ccrtaiidy  improper  and  witliout  precedent — a  bill 
of  review  could  not  be  granted  witliout  the  leave  of  the 
court,  and  when  granted,  it  did  moI  oj>erate  as  a  suspen- 
sion of  the  former  decree.  All  parts  of  the  former  de- 
cree must  be  peifiii  iiie<i,  except  such  as  if  |)erfiii-meii  would 
extinguish  the  right  of  the  Plain' ifT  in  tlie  bill  of  eeview  ; 
and  it  is  a  good  plea  in  bar  of  the  b'!!  of  review,  that  the 
former  decree  is  not  executed.  2  Eq.  Ca.  Mr.  175.  sec. 
8  &  10.  And  this  point  had  been  so  decid'd  upi'u  consi- 
di'iatioi.  ill  a  case  ai  Fayetteville,  April,  1"9.').  There 
the  wife  oi  Mr.  Spitlar  had  oblaitied  a  decree  for  alimo- 
riy  ;  lu'  obtained  a  hill  of  review,  und  iiMved  to  suspend 
atiy  further  execution  of  tln^  dicree,  until  the  bill  of  re- 
view could  be  heard  ;  and  the  court  refused  to  make  any 
such  order,  tlmugh  he  strongly  insisted,  that  a  bill  of  re- 
view ought  to  operate  like  a  wi  it  of  error,  w'lich  is  h  su- 
persedeas to  the  exei  ntion  till  the  writ  be  determined.— 
He  insisted  further,  tliat  a  bill  of  review  is  not  allowable 
in  ail)  case,  where  the  original  cause  is  not  completely 
determined,  and  the  decri'c  signed  and  enrollid — for  be- 
foi'C  that  time,  the  jjarty  supposing  himself  injured  by  any 
interlocutory  decree,  or  e\cn  after  a  final  decree  pronoun- 
ced, may  petition  tor  a  rehearing,  and  have  the  mistake, 
if  any,  rectified  that  way;  and  upon  a  lehearii'g  allow- 
ed, the  court  may  order  a  suspension  of  proceediogs  up- 
on the  interlocutory  order  or  decree  complained  of,  but 

49 


403  Haywood's  kepo-kts. 

M»y  1796  fiipy  ai'c  not  sfdppcil  witliDuf  such  special  orilei'.  This 
'••^"■^''^^  bill  is  inery  way  iiii[irop<^i-,  and  beiii.s;so,  will  he  disinis- 
tji-d,  and  the  injunction  upun  it  will  of  course  fall  with  it. 
E  contra — It  was  argued,  that  no  objection  could  lie  to 
this  bill,  as  a  bill  of  review,  exce|)t  that  of  the  foiuiei- 
cause  bring  not  yet  decided — as  to  which,  the  i)ractico 
here,  hud  not  been  precisely  settled,  an<l  he  wislieil  tlic 
opinicmof  ilic  couit  upon  it.  It  seemed  upon  principles 
to  be  exirt-mely  proper,  where  an  interlocutory  decree 
had  been  haslily  or  iinprovidently  made,  injui'ious  to  ei- 
ther party,  especially  in  a  case  where  if  was  to  he  attend- 
ed with  a  si'izurc  and  sale  of  property,  as  in  the  present 
■case,  where  the  execution  is  to  issue  immediately  for  so 
fSS"")  ''"'S''  •*  sum,  there  should  be  some  way  of  setting  it  right. 
He  could  not  see  wliy  an  injunction  to  stop  proceedings 
till  a  re-examination  of  the  mistake  comjilained  of,  took 
place,  should  not  be  as  pro])er  as  any  other  mode.  The 
practice  under  our  present  system  cannot  in  all  instances 
be  regulated  by  tin-  same  rules  as  adopted  in  the  courts. 
There  may  be  a  petition  of  rehearing  belbrc  the  Chancel- 
lor at  any  time.  He  alone  possesses  all  the  power  of  the 
Chancery  Judge — but  here  in  vacation,  each  Judge  sepa- 
rately does  not  possess  tlie  same  power.  One  Judge  can- 
not make  the  same  <trder,  upon  a  petition  for  rehearing, 
relative  to  tlif  suspension  of  i)roceedings  upon  a  decree  or 
sentence,  that  the  court  may  ;  as  one  Judge  cannot  make 
a  derrec,  he  cannot  suspend  it  |)crhaps  wlien  made,  sim- 
plv  by  an  order-  for  that  purpose  :  and  it  may  he  well 
doulited,  whether  one  Judge  <iut  of  court,  can  grant  a  re- 
hearing. It  is  very  |)rohable  tiiereforc,  that  the  granting 
an  injunction  in  the  present  case,  was  the  only  measure 
that  could  have  been  adopted  in  the  vacation,  to  obviate 
the  itijury  ('Oinplained  of,  till  the  court  were  again  assem- 
bled, and  could  examine  into  the  mistake  complained  uf, 
and  either  allow  or  disallow  of  the  petition  for  the  re- 
hearing, and  make  the  order  for  the  suspension  of  pro-_ 
ceeditrgs  on  the  former  sentence.  How  otln-rwise  can  the 
cxe(,'ulion  at  law  be  suspended  in  lime  of  vacation  ?  It  is 
H  iiMs'ake  to  say,  tliat  bills  of  review  cannot  be  granted 
befi!'!'  a  complete  compliance  w  ith  the  decree.  The  books 
will  sl-vw  ;'iany  instances  whei-e  bills  of  review  have  been 
susinined  before  execution  of  ihe  decree,  and  in  some  in- 
3t;ii>ces,  witlnMit  security  given  for  the  |>i'rforinance  of  it. 
Neither  is  it  in  nil  cases  necessary  to  apply  to  the  court 


Haywood's  reports.  404 

for  leave  to  file  a  bill  of  review.  But  it  is  immaterial  by  ^'"y  ^''^^• 
what  name  this  instrument  may  be  call»-(l — let  it'luive^'''""'''**^ 
some  other  name  than  that  of  a  bill  of  review — we  know 
the  object  of  it — it  is  to  be  nlieveil  at^ainst  the  injostire 
ies(iltin.i[;  to  the  Di-feiulants  at  law  by  the  last  dissoliiMon. 
In  whatever  way  «e  can  arrive  at  a  reconsideration  of 
the  sentence,  we  shall  be  satisfied. 

Per  curiam — A  bill  of  rev  ie\v  lies  only  upon  a  fmnl  de- 
cree enrolled.  Before  it  is  finallv  pi-ononnced  and  record- 
ed, any  mistakes  may  be  i-ectified  by  a  reheariiij?  griuit- 
cd  npon  a  petition  for  that  pui-pose,  stating;  wherein  the 
injustice  is  likely  to  bapjien.  A  bill  of  leview  is  always 
granted  by  the  permission  of  the  court,  given  either  in 
one  form  or  anollier.  If  it  l»e  grounded  upon  new  mat- 
ter discovered  since  the  hearing.  Iliat  is  cxhi'jiteil  to  the 
couit  by  way  of  petition  for  a  hill  of  rev  ie\\  ;  and  th;-  al- 
legations of  tiie  petition  are  supported  by  ;illi(!avit« — and 
i  upon  these,  the  court  decides  whether  it  be  proper  to  al-  (553) 
low  a  bill  of  review.  If  it  be  grounded  upon  error  apjia- 
rent  in  the  proceedings,  tlien  the  bill  i.-i  filed  without  any 
jietition  ;  but  the  Deiendaut  pleads  tlie  decree  in  biii',  and 
denuirs  to  the  opening  the  eni'idmont  iif  it — and  tlieo  the 
court,  before  they  can  dispose  of  tl  e  diMiiu-'er.  arc  ueres- 
sarily  obliged  to  look  into  the  decree,  and  see  wh'thci- 
tiiere  is  any  such  error  as  makes  it  proper  to  oxeri'ule  the 
demurrer.  If  tiiere  is  no  such  error,  they  allow  the  de- 
murierj  if  otherwise,  they  overrule  it,  and  open  Ihe  en- 
rolment— here  is  the  consent  of  the  cosdt  before  it  can  be 
laid  open.  Wlien  a  bill  of  review  is  alloweil,  it  iloes  not 
operate  as  a  supersedeas  to  the  decree,  and  nothing  in  the 
natuie  of  a  supersedeas  should  issue.  This  was  -^o  deci- 
ded at  Fayetteville,  as  the  counsel  has  mentioned,  in  A- 
prii.  1795,  upon  consideration.  The  bill  of  review  must 
be  grounded  either  upon  new  matter  discovered  since  the 
hearitig,  which  the. party  therefore  could  not  use  at  the 
lime  of  hearing,  and  which  in  the  judgment  of  the  eoiirt 
would  have  caused  a  different  decree  from  wh:it  is  m<<(le, 
or  for  error  apparent.  In  the  present  ca^e,  the  objection 
now  urged,  might  have  been  urged  at  the  iiearing."  The 
objection  is,  that  these  debts  are  not  the  debts  of  the  Com- 
|)any  against  which  the  Defendants  at  law  were  boned  to 
indemnif}  (he  Pliiiiitiflfs  at  law  ;  and  for  proof  of  this, 
they  refer  to  a  comparison  of  the  bonds  with  the  words 
of  ilie  agreement.     What  was  to  hinder  them  from  urging 


405  Haywood's  reports. 

May  1796.(1,15  matter  at  the  linie  when  (he  latter  dissolution  took 
^■^"^'^^^  place?  Why  (lid  tliey  not  long  ag;o,  excej)!  to  that  part 
of  tlie  report  wliirli  states  tliese  bonds  to  he  a  part  of  tiie 
partnership  debts  not  yet  lerovercd  by  tl>e  rredii'H-s  ? — 
That  report  was  made  up  in  their  presence  many  terms 
ago — it  was  never  exrepted  or  objrcted  against,  till  this 
bill  Nvas  filed.  This  tlierefore  is  not  aiiv  new  matter  pro- 
per for  a  bill  of  re\ie\v,  even  were  the  roui-t  now  to  de- 
cide upon  tiie  ])ropriety  of  grantipg  a  bill  of  tevi-w. — 
The  counsel  however,  is  willing  to  consider  it  as  a  jieti- 
tion  for  a  rehearing,  and  should  it  now  he  disallowed, 
/  that  the  injunction  granted  upon  it  .shall  stand  dismissed. 
It  most  be  in  substance  a  petition  for  a  rehearing,  lliougli 
it  differs  in  form,  and  upon  that  groud  we  will  itear  it 
read,  and  decide  ujion  it.  It  was  llien  lead,  ami  the  an- 
swer of  the  Dcfeiulants  also,  by  consent  ;  and  the  court 
directed  the  injunction  granted  upon  it  to  be  dissolved — 
the  answer  having  stated  pierisely,  that  these  were  debts 
duo  by  the  Company,  the  Defendants  at  law  were  bound 
to  indemnify. 


(354) 


Anonymous. 

This  was  a  single  bill,  for  the  paj'nient  of  so  many  dol- 
lars.    Plea,  non  estfadunu  dfc. 

Per  curium,  in  their  charge  to  the  jury — In  an  action 
of  debt,  two  things  are  recoverable,  the  numerical  sum 
mentioned  in  the  bond,  and  damages  for  the  detention  of 
the  debt.  Wiiere  the  currency  in  which  judgment  is  to 
be  given,  is  equal  sum  for  sum  to  the  money  mentioned 
in  the  bond,  the  jury  assess  damages  usually  for  the  de- 
tention to  the  amount  of  the  inteiesi  accrued,  hut  they 
are  not  obliged  to  assess  damages  to  the  amount  only.  If 
upon  enquiry,  for  instance,  they  tiiid  that  one  pound  ol  the 
present  currency  of  ihis  country,  is  not  equal  to  one 
pound  of  the  money  payable  by  the  obligation,  wliether 
this  inequality  hr  occasioned  by  depreciation  or  any  iith<;r 
cause,  and  though  the  money  mentioned  in  the  obligatitin 
be  not  (brcign  money,  they  m.iy  in  the  assessment  of 
damages,  increase  tiiem  beyond  the  amount  of  the  inter- 
est, so  as  to  make  the  d^itnagcs  and  priuripal  equal  in 
value  to  the  principal  and  inttresi  of  the  money  mention- 
ed in  the  bond.  And  the  jury  gave  a  verdict  accordingly, 
and  there  was  judgment  accordingly. 


HAYWOOD'S    REPORTS. 


406 


Note.— Til  another  case  occiirrii.p  this  -.xn  e  term,  where  the  mr.ney  *'»y  ^i^°- 
mentioned  in  t'.ic  Doiidwaw  Spani>h  milled  dollar?,  stciirfd  by  a  penalty  .i^~v-^>^ 
and  condaioii,  the  cuur;  directed  the  value  of  the  con. I  lion  t .  be  as- 
sessed, and  gave  jiiilgment  for  the  penalty;  1<  avinjf  'be  Pllntiff  to 
tak'i  out  exeentinn  for  the  value  assesset',  if  he  t  ouRiit  piopi-i,  .nd 
the  int^i.  ^t.  Tliorevvere  several  cases  also  ot  ^isss  .mpsils  for  currency, 
moie  depreci:>t.   1  at  the  time  of  the  cor.tract  1i.;.n  it  i^  now  ;  ;:n(l   ac-  ^ 

cording  to  the  direction  of  the  court  tli"  VlH'ntfis  recovered  "ilv  the 
Teal  valne  in  the  present  rurrency,  tt  e  sums  dei/  anded  t>.  ii  ^  reduced 
one  sixth — twelve  shiUinfrs  liuving  been  equal  to  a  dollar  when  the 
contracts  acre  made,  which  iswiow  only  equal  u.  len.  The  i  act  ice 
for  ihc  tw(^  last  circuits  has  been  iiniformly  upon  th<-  sam^  rjdts,  and  the 
eases  have  .lot  been  cobecicd  separattly,  because  thiyai;  num-roUf:, 
and  the  practice  is  now  generally  acknowledged  ar-d  aeqiiie"i(  ed  in. 
It  was  urped  in  <iw  of  !li'  sr  cases,  that  tlie  iiry  cannot  (five  a  greater 
value  to  (iriy  c'.in  spec  fied  Iti  ti.e  act  of  178*,  c  4,  s.  3,  than  is  iliere 
stated  ;  but  the  court  denied  that  doctrim',  anti  's:  id  the  jury  mijjht 
assess  the  value  of  such  coni-  by  the  acr  of  1777,  c.  2,«.  24.  The  rea- 
son of  fixing  a  valui-  by  1783,  was,  for  the  purpose  ot  ascertaining 
how  many  pounds  according  to  the  then  ideal  currency  of  Nurth-Ca- 
rolini,  were  contained  in  any  given  contract  tor  cined  itncncv  \  for 
wantof  wheh  ascertainment,  they  were  liRely  to  bear  difl'erer.t  values 
in  diffetcnt  parts  of  the  Sl-te,  ami  the  creditor  ''e  lialde  in  ucover 
less  at  mte  place  than  anoDer,  wlun  jndgmont  was  to  be  rendered  in 
pounds  sliillings  .-.nd  pencr-  in  th'-s  ideal  currency  ;  for  tliere  was  not 
actually  atiy  currency  of  Noith-Caiolina  at  that  time,  and  il  had  not 
thcnchanged,  nor  was  it  expected  tocli  ■tiije.  A  new  cnrrencx  of  less 
value,  however,  has  since  appeared,  with  which  for  llie  piirpnses  of 
justice  il  I'econics  frequtntly  nec.ssarj-  to  Compare  those  coins,  and 
with  the  ideal  currency  hefore  mentioned  j  and  bi  twen)  this  list  cur- 
rency and  the  other  two,  i  he  net  of  17H.'>  has  establish' d  ih.  rub:  of  /---c\ 
exehanf;e.  We  can  readily  know  by  the  ac'  of  1783,  ii'.w  many  sl;ii-  V"''  ' 
lings  of  the  old  North  Carolin.i  cinrency,  a  dollar  is  tqurd  to,  hut  it 
will  not  inlorm  us  how  many  shillings  ot  tlie  new  curiency  it  renrc- 
sents  ;  and  ot  necessity  the  jury  must  a.-certain  this  under  the  act  of 
1777.  Were  this  construction  nei  put  upon  the  act,  this  absurdity 
would  follow,  that  a  contract  forso  much  sterling-,  would  b.-  left  to  the 
jury  o  assess  the  value  ot  in  our  currency,  upon  evidence  if  the  real 
difl'erence  of  exchange  ;  wiKi-e.-is  if  the  contract  only  mentioned  so 
main  guineas  :'s  were  <if  the  value  ot  that  sterling,  tlie  act  of  1783 
would  decide  the  value,  and  allow  a  much  less  sum  in  cunenry  ihan 
the  sum  in  sterling  money  w.is  equal  to.^and  thus  t'.vo  sums  precisely 
equal  in  value  in  all  otiK-r  cuntries,  and  discliar^eabh  by  the  ame 
number  of  guineas,  would  be  disch.ugea!)le  in  this  country  by  i<i'er- 
ent  sums  of  our  curreiiey.  The  like  may  be  said  of  Frencli,  Spanish 
or  an\  oiher  foreign  money,  and  this  could  not  he  the  mcaninir  of  the 
act  of  1783 

Note. — Vide  Winshw  v.  Bloom,  ttntc'ilT- 

Atioiiyinoiis. 

It  was  siiid  ill  tills  case,  bv  <\Ir.  J\Ioore,  ami  not  tieiiir d 
by  any  nf  the  baf,  tliai  H  li..tl  bt-eii  lifriiletl  in  this  (omt 
a  few  tefiiis  iigii,  ili:it  U>ttei.s  of  .itlmiiiisti  itiiiii  t^raalcd 
in  another  Statf,  lonid  not  cntitl     ibc  itilminjstrator  to 


407  HAYWOOD's   llEPORTS. 

May  1796.  maintain  n  suit  liPrc.     Thoiif;li  he  said  this  question  was 
^"^'"•^^^^  resri'ved,  wn'l  jet  depondod  in  Salislini-y.  in  tlie  case  of 
Uillarij  Butts's  ^Administrators  v.  Isaac  Price. 

Haywood,  Jiistiro. — !  was  roncei'nrd  in  the  r,nsf^  at 
]jf»  Salisbni-y  to  sM|i|)iirr  tiic  affirmative  nf  (lie  proposition 

and  have  taken  mucii  pains  to  iiifoi-ni  myself  of  llie  law, 
and  I  think  it  is  as  the  conit  deciilcil  here. 

JjiiTE. — It  is  cpit.in  (hat  the  KHRlisli  law  is  apreealile  to  llie  decision 
at  WilmiiiKlnn,  asi-lat".!  bv  Mr.-Moore  2  .Ilk.  63  If.  Bl.  lie.  146, 
1S2,  153.  154.  r.  l1il.Z70'.S7\.  J)uer  S03  Swmb.  441.  9  Hep  39. 
Gof.'.  ?32,  .<•.  8,  n.  Cvo.  El.  472.  Salh.  40,  1  Vern.  397,  307.  1  Mo. 
C.  244.  3  Term  387.  And  the  reason  given  in  some  nf  tliesp  bootts  is, 
tliat  if  llic  (;i''*"t"iK  tlu-  letters  ciradminstrutinn  be  denied,  it  cannot  bo 
tried,  as  that  is  a  ^icl  to  be  tried  by  a  .jury.  9  Hep.  40.  And  no  jury 
of  the  vicinity  can  be  i;ot  in  the  case  ot  an  adirtinisi  ration  alles^ed  to 
be  granted  in  n  tiireign  country.  GoiJ.  132.  liv  othrrs  it  seems  to 
Ijis  owing  til  llie  particular  construcliou  of  the  Ecclesiastical  l^ouit, 
which  can  only  jjrant  administra'.lon  in  such  cases  where  formerly  the 
Bishop  mlg'ht  have  possessed  himseir  uf  thi-  go:  ds  to  be  distributed  in 
pios  usus.  2  Jil  Com.  494,  495.  1  hat  is,  o(  the  goods  uiihin  hisown 
Jurisdiction.  Uefnre  the  Bishop,  the  King  had  ilic  right  of  distribut- 
ing inif state's  effects,  which  power  he.  usually  leputtd  to  the 
■nishon.  G7flnw. /;•/;.  6'.h,  66,  67.  9  Jlep.  S\).  Pfew  297.  Sn-inb.  i'28. 
Until  usage  at  l.;[iglh  ripened  into  a  riglit.  2  Tnsi.  399.  3  Mo.  59.  /.. 
.Roy  R6,  363.  5Mo.247.  WillJie.  pi.  2.  Salk.pl.S.  And  this  right  the 
ll'isho,  '  abused  for  their  own  private  advantagi ,  till  arls  nf  Parliament 
compelled  them  to  appoint  ndminislr.itors.  So  that  administration 
succeeded  to  the  Bishop's  right  to  distribute,  and  tliat  by  the  usage 
onlyVxtcnded  to  the  gooils  within  his  own  dioc  se,  or  of  him  whose 
soul  he  b:id  the  care  of  when  alive.  These  acts  substituted  the  profits 
arising  from  the  fees  for  gr  intinjj  letters  of  adminisiration  in  the  place 

of  the  Bishop',-  ancient  right,  ti>  distribute  the  goods.     2  Jltk.  659 

Where  there  are  no  goods  tlierelore,  he  has  no  riglit  to  grant  the  let- 
(356^  ters  ;  ant!  in  order  to  s'cure  to  him  these  sub.stituted  profits,  wliiere 
there  are  g  od<.  the  admini'itralion  i,s  deemed  to  be  void  unless  grant- 
ed by  him  :  and  since  the  act  for  granting  administrations  as  it  would 
be  inconvenient  where  there  are  goods  in  different  dioceses,  for  each 
flish'p  lo  grant  Utters,  in  such  case  the  meirepolilan  shall  grant  them; 
*  but  then  their  nitliorily  extei  <ls  no  further  than  lo  the   bound.s  of  his 

jurisdiciior.  Swiiili  440.  2  Lev.  86.  The  probite  of  v  ills  before 
the  administration  act,  na»nrali\  followid  the  right  to  distribute  the 
goods  of  the  intrstate  ;  for  the  Bishop  could  not  ascertain  liis  intes- 
tacy, if  the  will,  where  there  was  any,  was  not  to  be  proven  before 
him.  It  was  then.fore  adopted  as  a  rule,  that  he  was  not  lo  be  hin- 
dered fr 'm  distributing,  unless  where  a  w  11  w;is  ))roven  in  his  court, 
which  annihilated  his  pretensions:  and  thus  the  power  of  taking  pro- 
bate of  wills  was  drawn  by  the  Bishops  into  Iheir  cour's,  as  a  thing 
neces-arily  in'idei.t  to  their  power  to  distribute  in  pios  u.ius,  which 
they  had  ;'cquired  by  us-ge.  A  probate  bifore  himself,  was  Ihe  only 
one  that  could  oust  the  Hishop  ol  his  right  to  dislribu'c:  hence  a  pro- 
bate beyond  sea  c  uld  not  do  it,  neither  would  a  probate  in  another 
court  out  of  the  Uishop'.s  jurisdiction  ;  fur  that  court  was  not  ouffi- 
oitntly  in'eresled  to  be  careful  thai  ihi  probi.le  should  be  a  fair  one, 
tht  goods  not  bting  within  its  jurisdiction,  nor  to  be  dislributed  by  its 


HAYWOOD'S    KEPORTS. 


406 


ishop  ill  any  event— and  such  a  practice  m.jreover  was  liable  to  con-  May  1796- 
tusiou.  us  the  Ilisiiop    inisiit  priiceiil  to  disii-ibuie,   not  knowing  of  ^.^c-v'-^./ 
the  proijate  in  molSicr  r.o'urt.     Thus  It    Is   pioiialilf,  stood  the  power 
ol  tlie   Bishops  at  the  lime  when  the  act   for  graiitinij  administrations 
was  passed,  and  then  the  Uishop  was  appointed  to  -^^iMnt  the  adminis- 
tration, h<.c:nse  possess^np  the  oowci-  to  take    proiiate  of  wills,    lit 
could  best  know  who  had  died  intest.iie  ;  and  it  became  u  rale,  th«t 
he  who  had  power  to  take  probate  of  the  will  of  llic  deccMsed,  might 
also  grant  letters  of  administration  in   case  of  hii   inicslacy.      As  ad- 
ministration followeu  llie  probate  of  wills,  and  that  ihe  power  to  dis- 
tribute in  ancient  times,  and  as  that  power  was  exerciseil  only   ovcf 
the  goods  within  the  juris<liction  of  each  ordinary,  itcaise  to  be  a  rule 
in  Kngland  at  this  day,   that  the  granting  letters  oc'  administration  is 
confined  to  that  jurisdiction  within  which  the  goods  arc  ;  and  that  all 
probates  of  wdlsttiul  granting  letlcrj  of  administration  by  other  juris- 
dictions in  which  the  goods  ate  not,    are  void;  altlioiii;ti   were  such 
probates  and  Kdminislraiions  allowed  to  he   good,  the  etf'ecta  of  the 
deceased  would  be  distributed  in  llie  s.imc  manner  aa  thty  would  be 
under  the  probates  and  administrations  which  are  allowed  to  be  valid. 
TiK.t  a  (orei^'n   adminis'.iaiion  is  of  no  torce  in  F.nt;land   therefore, 
stems  to  bo  owing  to  the  peculiar  species  of  jurisdiction  given  to  the 
Ecclesiastical  Couris,  that  jurisdiction  depending  upon  the  local  situ- 
ation of  the  KOods  to  be  administered,  so  as  that  there  is  no  authority 
where  there  are  no  effect*.     This  is  not  a  rule  foumled  upon  any  uni- 
versal principle  ;    it  is  .i  inle  <f  municipal  law,  founded  upon  a  spcci- 
>   alify  of  cireumstances.     In  this  country,  the  rule  of  our  law  is  founJ- 
ed  upon  a  different  circumst. I. ce  and  other  considevi.tions.     The  ju- 
risdiction  here  is  foundeil  upon  the  circumstances  of  ihc  deceasedV 
residence  at  the  lime  of  his  death,  the  probate  of  Ins  will,  or  letters  of 
adminisualion  is  to  be  granted  in  the  court  of  the  county  where  he 
lived,  to  the  end  tlie  citizens  may  know  with  cert.iinty  wheretoapply, 
either  to  prove  or  lo   0|<|)ose  the  probate   or  the  granting   of  letters. 
The  ascertaining  intestacies  and  providin.;;  for  them,  is  naturally  com- 
mitted to  the  same  jurisdictiMii:  the  framing  letters  testamentary  or 
of  adniinisu-ation  by  any  oilier  court.  Is   void.     But  letlurs  granted  in 
the  county  where  the  deceaatil  did  not  reside,  are  void  ;   not  for  the 
same  reason  they  would  be  so  in  Kngland,    where  'he  r  invalidity   is 
referred  lo  the  ciicumslance  of  there  being  no  goods  of  the  deceased 
within  the  jurisdiction  that  granted.     Since   then  jurisdiction   liiiis  In 
England,  when  there  are  no  goods  within  it,  and   doth  not  tail   here     fjj"') 
lor  the  sane  reason,  it  may  follow  that  though  afoicign  administration     ^ 
may  not  be  good  in  England,  it  may  here;  for  the  goods  here  may  be 
distributed  by   hdministration   granted   in   another  jurisdiction   than 
■»w  here  they  are, which  in  England  is  not  so.  l:i  the  argument  of  the  case 
of  Hulls  and  J'rice  at  Salisbury,  it  was  said  I  hat  the  edijcls  within  our 
iiv,n  territory,  art  ilistributahic  accoi<ling  to  the  rules  of  our  own  law 
only  ;  and  tliat  whoever  tjkcs  adoiinislralion,  gives  security  to  d.stri- 
bute  them  according  to  our  lu.i'  ;   and  if  there  aro  no  sharers,  our  lav.' 
gives  the  effects  oi'ihe  deceased  to  the  public.   The  laws  of  other  coun- 
tries m  y,  aud  no  doubt  do  in  siHne  particulars  direct  a  dlfi'erent  mode  of 
distribution;  and  the  administrator  appointed  under  tl.cm  must   ad- 
minister according  to  their  law.     And  should  a  foreign  adminis'rator 
be  .uflVrod  to  recover  the  effects  here,  he  will  convey  them  into   his 
own  country,  and  distribute  them  according  to  the  law  there,  to  the 
injury  of  the  prrsons  eiititleil  by  our  law,  or  some  of  llirm,  and  perhaps 
fo  the  injury  of  the  Stale.     One  answer  to  this  is,  if  the  dece.;sed  was 
the  subject  or  citizen  of  atiollier  government,  his  peisonal  property 


■109 


llAYWOOU  f>    UKl'OUTS. 


May  1796.  lieie  is  ilistril)utiil>Ie  by  llu-  )aw  of  his  ow n  country,  and  nol  by  ours. 

v.<.-v"^;  4  Term  185,  184.  192.  Vatl.  b.  2,  c.  7,  s.  85  109,  110.  2  Ves.  35. 
.imb.  r>,j.  2,SVra  733.  //  .8/  «e/<.  691.  2  Bro.  Ch  it.  2P  nil.  88. 
l^fVf  Rtp.  IS,  16.  ^«^259,  .V.  15.  /•.  C/(.  578.  -Vmi  thtii  tlicrt  is  no 
ie:isi>ii  KriiiimU-<i  Uj)i)ii  the  inj  ;siice  ot  ih--  thing  tha'  would  exclude 
liiiii.  It  is  not  upon  tl.at  prji.^iplK  he  i.s  txcknied  in  Englnnd.  Witli 
icsppci  to  ibe  Roods  of()i:t  olour  own  citizens  (bun  1  licre  upon  his 
de;ith,  the  arsninent  se-.Miis  to  huve  some  w>-i.nht  ;  but  neitlier  with 
respect  to  hiin  are  tlie  reasons  ot'thnl  :ii'(jument  tntre  nhicli  eiclude 
^  him  in  England  -it  dt-pcnds  there   solely  upon  t!ie  rule  that  the   ad- 

ininis''ation  ot  goods  cannot  be  committ.-d  but  by  the  ordinary  of  the 
placi  wliere  the  goods  are.  In  addition  to  tlie  rea.sons  of  that  argu- 
ment, ai:o'.her  tniglit  be  urrcd  of  some  weight,  namely,  th:<t  a  foreign 
admi  II  trHiormij^ht  sue  here  without  ;jersonally  coming  into  this  Sl.ite, 
and  so  :ivoid  ilie  process  of  creditors  ;  and  by  that  means  recover  la 
and  convey  away  his  eflrcts  without  paying  Ins  debis  ;  whereas  were 
the  adininis!r:ition  granted  here,  lie  must  give  security  to  pay  the  cre- 
ditors; which  benefit  is  lost  by  allowing  tl;e  foreign  administration  to 
be  good.  And  perhaps  th.  se  re.isonsa.e  of  weight  enough  to  juiitify  the 
decision  at  Wilmington — every  Stute  shotdd  procure  justice  ior  its  own 
citizens  in  the  first  place,  and  the  requiring  letters  of  administration 
to  be  gr.inted  liere  secures  it.  in  the  case  of  our  citizen  residing  iu 
anotlier  counliy,  and  having  tfTccts  licre  at  the  time  of  his  death, 
there  is  belter  reason  for  giving  validity  to  a  foreign  administration  ; 
and  in  case  of  a  foreigner  dying  here  orelscivhere,  and  leaving  efTects 
here,  the  requiring  administration  to  be  taken  out  here,  will  not  hin- , 
der  a  distiibutuiii  Irom  bi/ing  made  according  to  the  laws  of  his  coun- 
try, when  at  the  s:ime  lime  it  pi'otects  the  right  of  credi'.nis.  These 
considerations  indicate  the  jastne.'js  of  the  decisions  at  Wilmington, 
and  shew  that  very  proiiiOlv  ii  is  good  law.  I'hey  wire  attended  to 
in  yie  ease  of  NeiA  and  Mumford.  Kirby  Rep.  270.  Where  li  tters  of 
admini.slration,  granted  in  tn  •  State  of  New-Yoik,  were  held  good  to 
support  an  action  upon  ii-  Connecticut,  ihere  being  no  goods  and 
cliailels  of  the  deceased  in  Connecticut — had  there  been,  it  was  im- 
plied in  the  reasoning  on  that  Cise,  th- 1  th'  re  should  h;ive  been  an 
administratiim  in  Connecticut,  tocolhct  and  inventory  the  effects, 
and  to  pay  lunend  charges  and  debts  contrac.ed  in  that  .State. 

Note. —  The  decision  referred  to  in  this  rase  was  confirmed  by  the 
Court  ot  Conference,  in  Butts's  Adm'rs.  v.  Pric.,  Con.  Rep.  68.     But 
an  e\"CUtor  can  maintain  ai.  aciion  nere  upm:   h  t'Crs  ^e^tamelltar)  is- 
^  sueil  upon  a  pri>oaic  in  anot'ier  Stiie.     Stephens's  Ex'rs.    v.  Smart's 

Bx'ri.  1  Cat:  Laxo  Rep.  471-  Although  an  admi  .i.trator  app  ioted 
in  aiioth.  r  Sm  .  ii..s  ii  i  ri;,ht  to  sue  in  the  coUits  o!  'llis.  yei  «  heie  he 
lii.s  .1  b.<nd  due  Ins  i..test.llif,  ana  assign ,  it,  his  asi^iue  cin  maintain 
an  action  in  our  courts  in  his  own  name.     Ltake  v.  Gilchrist,  2  Z/w. 


Hep.  71 


f 


\ 


Haywood's  keports.  410 

MORGAN,  SEPIEMBER  TERM,  1796.  Sep.  1796, 

English  t'.  Camp.  (358) 

A  deposition  Cf  itifi^  J  to  have  been  taken  on  llie  day  and  in  the  coun- 
ty in  Si)iitli  Ciii'olina,  as  specified  in  the  notice,  but  without  stating 
the  particular  place,  cannat  be  read. 

The  counsel  for  the  DflVtitlant  offeied  to  read  a  depo- 
sition, and  proxfd  tin-  notit;e,  whirli  wa^i  tliat  tli:-  depo- 
silioti  wfiiiltl  lie.  taken  iit  a  ceitain  day  and  placis  in  a 
cfiitain  Ciiuiitv  in  South  Carolitm.  'I'lie  deposition  was 
ceriified  to  have  bciMi  tajieii  in  the  county,  and  on  the  day 
mentioned  in  the  notice,  but  said  nothing  of  the  place 
wlieie. 

Per  curiam — The  deposition,  though  certified  to  liave 
been  taiven  in  the  ptO|ii'i'  c')tiiity,  niiglit  not  lia»e  been  ta^ 
ken  at  the  place  appointeil  bj  the  notice,  atid  fii'  might 
we  know  to  the  contrary,  the  atlverse  party  may  have 
gone  to  ilie  place  appoiuic:!  on  ih.it  d.ij.     Were  we  to  , 

allow  of  the  reading  of  this  dep  isiiioii,  we  should  estab- 
lish a  jnecedeiit  which  wuild  put  it  in  the  power  of  a 
mail  to  deprive  iiis  ad\ersary  of  tlie  benefit  of  cross-exa- 
mination whenever  he  pleased.  As  to  what  the  counsel 
urges,  that  we  oughl  to  pitsiime  the  deposition  to  iiave 
been  takin  at  the  proper  place,  tinless  the  idvi  rsP  party 
will  show  the  contrary — how  is  he  to  get  his  witnesses 
from  South  Caitiiina,  to  prove  him  to  ha\e  been  pr»  sent 
on  tlie  day  and  place  ap(iointed  hy  the  notice  ?  Or  how 
js  lie  to  know,  after  having  been  at  the  place  apiioiiited 
where  no  de|)o.sition  was  taken,  that  the  depositi-m  liad 
been  taketi  at  another  plat  e  ?  He  maj  noi  know  of  tiiis 
until  the  deposition  is  produced  nn  the  trial,  and  then  it 
is  too  late  to  prepare  the  necessary  [iroof.  Tlie  deposi- 
tion  was   lejected. 

Note.—  Vide  ^ihtunv.  Taylor, post  394,  in  the  note.  Stir.  Part').  «/' 
McNaushtan  &  Co.  v.  Lester,  post  421. 

Dickey  V.  Hooilenpile. 

In  an  Bjectment,  the  first  grunt  is  the  only  tiii«g  to  be  enquired  ioto, 
without  any  regard  to>tbe  entry  oi  survey. 

Ejectment  for  two  hundred  and  forty  acres  of  land. — 
Dickey  claimed  imtler  a  grant  from  the  Sttl-,  da^etl  the 
lOtli  of  September,  1773,  and  proved  the  land  surveyed 

55 


41 1  Haywood's  UEPonxs. 

Sep.  1796.  at  the  place  mpiitioiiod  in  his  declaration.  Hoodenpik 
-^"'^''^^  rl'.iinud  uudfp  McDowell,  wlio  obtained  a  grant  from  the 
yiatf,  datfd  7tli  August  1787,  which  included  the  same 
land.  .^/cOowe/niad  first  entered  this  land— Dicfeei/  some 
time  after,  entei-id  his  two  liundred  anfl  fifty  acres  <>n  the 
middle  fork  of  Cain  ri\er,  but  surveyed  this  tract  of  two 
hundred  and  forty  acres  on  another  prutia;  of  that  river 
upon  McIhweU's  entry — and  tin-  question  was,  vvhelher 
this  j;raiit  \\a9  valid  It  Was  argued  lor  Uoodenpile,  that 
the  act  of  1777,  c-  1,  s.  9.  declares  void  all  <;raiits  ullier- 
vrise  obiaioi'd  than  that  act  directs  ;  and  that  the  entry- 
taki-r  had  not  hy  his  warrant,  nor  indeed  could  he  autho- 
rize the  surveyor  lo  survey  tlioae  lands  lor  Dickey,  \\hich 
^_,  ,  he  had  not  entered,  to  tlie  prejudice  of  McDnwdL  wiio 
•■"^  '  had  entered  them  ;  and  consequently,  that  whatever  the 
suiveyor  had  elonc  in  suiveyiog  these  lands,  and  return- 
ing plats  of  them  to  the  Secretary's  office,  had  been  done 
without  authority,  anil  otherwise  tiian  the  act  directs, 
and  so  was  void,  as  were  also  all  the  proceedings  subse- 
quent to  that  period,  the  grant  inclusive. 

Judge  VA'iLiiAMs — When  a  grant  once  issues  for  a 
tract  of  vacant  land,  it  becomes  the  only  evidence  of  ti- 
tle, and  we  cannot  afterwards  look  further  back  than  the 
grant.  We  must  admit  all  antecedent  proceedings  to 
have  been  regular,  otherwise  we  should  introduce  the 
practice  of  iisvalidatinsr  giants  by  parol  testimony.  The 
grant  may  be  suspefided  and  a  trial  had,  where  a  claim- 
ant pr'oceeds  to  survey  and  return  plats  of  other  land  than 
those  he  has  entered,  to  the  prejudice  of  another  who 
lias  entered  them  -.  an<l  McDowell  should  ha^e  proceeded 
this  way — as  he  has  not  done  it  he  has  slipped  his  time, 
and  cannot  now  object  to  the  grant.  It  seems  unjust  that 
he  should  lose  his  land  by  the  mistake  of  the  surveyor, 
who  has  surveyed  the  lands  entered  by  him,  for  the  lands 
entered  at  another  place  by  Dickey — but  Dickey  by  that 
mistake  has  lost  the  land  he  entered  :  for  it  is  said,  that 
another  person  has  since  obtained  a  grant  foi-  it.'  It  is 
poesible,  that  Mr.  McDowell  might  obtain  redress  in  a 
Court  of  Equity,  but  I  am  clearly  of  opinion,  he  has  no 
remedy  in  this  com  t.  Our  Couits  of  Law  have  iinilorm- 
fy  decided,  that  whoevei-  obtains  the  first  grant  shall  be 
the  legal  proprietor,  without  any  regard  had  to  the  first 
entry  or  siirtey  ;  and  indeed  without  regarding  whether 
there  was  any  entry  or  not— -the  court  will  not  go  back  to 
these  circuiutitatices. 


Haywood's  reports.  412 

Judge  Haywood  was  silent,  havina:  been  concerned  in^^P-  ^''^'^• 
tlic  raiiHi"  w'lilsl  at  tlie  bar.  The  PlaiiiliflT  had  a  vndict  '-'''^^^'^ 
and  judi^meiit. 

NoT£.  —  Vide  Reynolds  v.  Flinn,  and  the  noti-  thereto  ante  106. 

Ellmore  v.  Mills. 

A  copy  iif  a  registered  deed  C'rifi'd  'y  the  Clerk  of  the  County 
Court  in  Virginia,  wlio  was  c<Ttfird  oy  tht  Governor  to  be  the 
Cleik  ot'ihH-  Court,  is  »dmissil)l  Acts  nf  ihe  (i-^ieral  Ass-mbly  ol" 
Virpiniii  must  be  cer'ified  h\  tlie  Secre'.ary  ai.d  not  b\  tlir  Clerk  of 
the  (louse  of  Delepate^,  Nutice  to  take  a  deposition  at  the  bouse 
of  John  Archeldus  Ellmore.  htii  the  U'posit'.oti  cer'ifitd  to  havi-  been 
taktnatthe  house  of  John  Ellmore ,-  held,  g'ood,  as  thfy  will  be 
presuttied  to  be  the  names  of  tiic  same  person.  The  statute  of 
limitations  begins  to  run  from  the  time  the  nei,'rois  rame  in  the  pos- 
session of  the  Defendant,  U"!esB  entrusted  with  ih-m  bv  the  Plain- 
tiff" for  an  indefinite  time,  (li-.r  then  the  aci  will  not  begin  to  run  till 
demai.d  made)  or  unless  the  Defendant  removed  hiniselfso  that  the 
Plamtifi  could  not  find  him  to  bring  suit,  or  had  the  negroes  with- 
out the  knowleiige  of  the  Plaintiff. 

The  PlaiiitiflroBercd  to  produce  a  rfgi.stered  copy  of 
the  deed,  which  he  said  tlisposed  of  the  iipj;;ri)cs  in  ques- 
tion and  limited  them  to  the  Plaintiff.  The  copy  was 
certified  by  the  Clerk  of  a  County  Court  in  \irj;iiiia,  and 
the  Governor  had  certified  that  lie  was  the  Clerk  of  that 
court. 

Fer  curiam — This  i-*  well  certif  ff<l,  though  not  in  the 
mode  prescribed  by  the  act  of  Cimgiesw — that  act  is  only 
affirmative,  and  does  not  abolish  such  moHes  of  authen- 
tication as  were  used  here  before  it  passed,  and  tliis  was 
the  usual  mode  before  that  act ;  but  tlie  Plaintiff  must  (360) 
swear  that  he  has  not  the  original  in  his  possession  oi* 
power,  before  he  can  give  the  copy  in  evidence. 

In  the  fmtlier  progress  of  the  cause,  ihe  Plaintiff  of- 
fered in  evidence  some  acts  of  (he  GeotiMl  Assembly  of 
Virginia,  copies  of  which  were  certified  by  the  Clerk  of 
the  House  of  Dtlegates,  and  he  was  ceitified  by  the  Go- 
vernor to  be  the  Clerk  of  (hat  House,  and  tlie  proper 
officer  to  certify  the  proceedings  of  the  Legislature. 

Per  curiam — The  Secretary  is  tlie  ollicer  who  has  the 
keeping,  ami  is  entrusted  to  make  out  copies  i>f  the  acts 
of  the  Legishture.  The  Clerk  of  the  House  of  Dele- 
gates can  only  certify  sncii  pioceedings  as  take  place  in 
tlie  House  of  Delegates. 

In  the  fiiriher  progress  of  this  cause,  the  counsel  foi 
the  Plaintiflf  offered  to  read  a  deposititm.    'Hie  notice 


413  haywood's  repouts, 

Sep.1796. ^ag^  ^|,at  it  would  be  taken  hi  a  rertain  county  in  the 
s^"'''^'*^  St  tc  '>'  South  Carolina,  nt  the  house  oF  John  Archeiaus 
EUmore :  and  ihf  <h'piiHitinii  was  ceriified  to  haxo  been 
taken  in  that  Stale  and  county  at  the  house  'fJohn  Ell- 
more — and  it  was  objected  that  the  deposition  was  not 
taken  a!  ihe  place  appoiiiled  by  the  notice,  and  so  that  the 
D< Tendatit  h,.d  h>st  ihe  benefit  of  cross-pxaiiiiiiation. 

Per  curiam — We  will  presume  John  Jlrchelans  EUmore 
and  John  EUmore,  to  be  intended  lor  the  same  person. 

Another  p  iiif  in  this  case  was,  whether  lh>  PlaintifT 
was  h.iiii-fl  hj  tl'i'  act  <!!'  limilations.  The  uegioes  had 
been  lo  possession  '^f  owe  Jordan,  «ho  claimed  them  as 
Ilia  own.  IVom  ChristniaH.  in  the  year  17S5.  when  he 
bronjE;ht  them  to  this  State  and  sold  them  tnMiUs,  against 
whom  no  action  wastoirimenced  till  the  month  of  March, 
7793. 

Per  curiam — The  act  of  limitations  began  to  run  from 
the  time  the  negroes  came  into  tiie  possession  of  tlie  De- 
fendHiit,  unless  he  was  entrusted  with  tlicin  b>  the  Plain- 
tiff for  an  indetinite  time  :  for  then  the  act  will  not  begin 
to  run  till  demand  made,  or  unhss  the  Plaintiff  can  shew 
that  the  Defendant  remoYed  himself  to  sui  h  places  where 
tlie- Plaiotiff  could  not  find  him  to  institute  hir.  suit,  or 
had  the  negroes  without  the  knowledge  of  the  Plaintiff. 
So  Defendant  had  a  verdict,  and  there  was  judgment  foi- 
bim. 

NoTK, — Upon  the  sufficiency  of  the  deposition,  see  Ridt^e'i  Or, 
phans  V.  Zetf!s  &  others,  Cojif.  Hep.  483.  Upon  tlie  last  point,  sec 
Berry's  Adm'rs.  v.  Pultam,  ante  16. 

Porter  v.  McCIiire. 

The  wife  of  a  person  imerested  in  the  event  of  the  question,  but  not 
of  thi'  cause,  is  admissible  as  »  witness. 

\ 

The  Defendant  otTeied  Mrs  Greenwood  to  prove  that 
Hagdr,  Hie  wmch  in  question,   was  a  sound  and  sensible 

/ggjN  negro.  "The  poini  in  controversy  was,  whether  she  was 
so  or  not.  when  McClure  sold  her  to  Por/er  and  warrant- 
ed her  to  be  so.  The  hush.nd  of  this  witness  had  pur- 
chased the  same  jiegro  of  Porter  and  since  sold  her.  It 
was  objected  that  Mrs-  Greenwood  was  iiicoini)etent,  be- 
ing interested  in  the  evi-nt  ol  the  quisfion  ;  for  if  the  ne- 
giri  was  really  an  ideui.  then  the  vendee  ol  Greenwood 
may  tesort  to  him  for  selling  an  iinsnund  negro.  She  is 
inteixsted  in  maintaining  the  negro  to  have  been  a  scnsi- 

'—  ble  one. 


HAYWOOD'S    REPORTS. 


414 


Per  curiom— The  tine  nile  is,  if  the  verdict  in  tlils  ^^P-  ^"^^■ 
cause  may  hv  jj'vpji  in  cvidfurt'  in  anoihei-  ciiiise  for  "f 
against  the  witrcss,  then  lier  testing. ?iy  .siinnlil  not  be  re- 
ceived, ottioi  wiM'  il  may.  Now  (he  verdict  in  this  cause 
to  wliicli  Grceivweod  is  no  purty,  cannot  pus^ib!}  e\ei' 
rome  to  bi-  Riven  in  evidiuce  fur  or  a^aiiisl  iiiin,  ir;  Awy 
other  cause  lo  wiiiiii  be  sliall  be  a  party,  and  tl'tiefme,' 
she  is  clearly  a  cocnpi'ienf.  witness.  Fmnieily  there  were 
some  doubts,  vvhrther  a  witness  inieri'stcil  in  liic question 
could  be  icieived,  and  lor  s-mie  time,  liip  decisions  were 
botli  wajs  :  bin  it  is  laiciy  sfttlcd  in  onr  court...  ili.st  no 
inteiest  biK  liiat  in  tiic  f\ont  of  ibc  laii'ic,  .shall  i  iider  a 
witness  iiKmnpeteut.    Slie  was  sworn  and  i^ave  evidence. 

NoTK. —  Vide  Farrell  v.  i'L-rry,  anu  ihe  refiicr.ces  in  the^iiolc  upon 
this  subject,  ante  2. 

Muslirovv  &  Co.  V.  Gialiam. 

Enoch  SawyerwAs  tlie  snbscribi.if;- witness  to  ilie  bond, 
and  lie  was  the  Collector  of  imposts  foi-  the  district  of 
CaiTiden,  and  his  dtposifion  had  been  taken, and  was  now 
offi'f'd  10  be  \-v  '(\. 

Per  curiam — It  is  the  commoti  practice  to  receive  the 
depositinns  of  ail  such  |)nblic  oflicers,  the  dtitit-sof  wliose 
offices  oblige  them  to  alien*!  at  a  particular  plac  for  tlie 
discharge  thereof.  h^•t  the  (lepo>;itioii  be  read,  imii^' 
proved  the  execulion  of  the  bond  by  Graham,  hut  did  not 
say  thai  Graham,  the  Uefeodanl  in  tiiis  action,  was  the 
person  who  exciiitcd  it. 

Per  curiam — Yon  may  identify  the  Defendant  bv  proof 
of  bis  hand-writing.  I'iie  tMaJiitiffthin  proved  the  hand- 
wriiing  in  which  the  obligor's  name  was  sn'.isciibed,  to 
be  Ihf  band- writing  ot  Gra^ajn  the  Defendant,  and  he 
bad  a  verdict  and  jiiiigment. 

England  v.  VVitherspooii. 

A  lci:der  of  a  spociSc  article,  (as  ;i  ncgrn  lioy,)  win  re  no  paniciilap 
j.laci.  ie  appointed  for  delivervris  not  tiuflicicrit,  if  only  mude  at  llie 
house  of  tlie  peisr.nwho  is  bouni!  to  ni»k  ■  il. 

Tender  and  refusal  pleaded.  The  note  when  produced 
was  for  one  hiindicd  pounds. payable, or  to  be  discharged 
by  delivery  of  a  likcl}  ne!;rii,  of  the  age  of  eleven  years, 
by  a  day  certain.  Tii  evidence  was,  that  on  that  <lay,  (362) 
an  aa;ent  nf  Hilhc'spfoii,  by  his  direction,  attended  at  hi.s, 
fFitherspimi's,  house,  with  a  liketv  iksjio  of  (tie  age  of 
12  or  13. 


415  HAY  wood's  keports. 

Sep.  1795.  -pff  curiam — It  is  not  a  good  tciulpp.  Wlieii  a  specific 
^•^'"^''^^^  aiiiflo  IS  til  be  delivered  and  no  place  apjiointed,  the 
delilor  niu.'it  .e;ive  notice  of  his  rtadiness  to  pay  on  the 
day.  and  lofiuest  tlie  creditor  to  ap|)oint  a  place  wlierc 
he  «ill  receive  tt ;  and  on  the  d;iy  he  must  attend  at  the 
place  app'iiiited  until  sunset,  to  make  the  delivery,  unless 
the  cicditoi  refuses  or  accept^  hefore:  here  no  such  request 
was  made,  nor  was  there  any  airVin'mcnt  of  place;  and  the 
crediior  Could  not  know  that  hr  ■vv;»s  ready  tr»  make  the  de- 
livery at  his  i>\\\,\  h'nisc  ;  and  heside-i,  had  that  been  the 
place  ajipoitited,  it  <loes  not  appear  that  l»e  attetided  till 
sunset,  and  that  the  creditor  did  not  r nme.  The  jury 
fouid  ajjainst  the  plea,  attd  the  Plaintiff  had  jud,^ment. 

Note. — In  tliis  case,  Junes,  Solicitor-Gemral,  all-'peil  th-re  had 
been  niany  decisions  in  tin.  lower  cimits  e-tablishing  it  as  incumbent 
upon  tlie  cieditor  on  ihe  (lay  appoiiili'd  by  iSii.-  cjrr.rict,  where  no 
place  was  mentioned,  to  demand  tlie  .-irticle  j.i  ihe  lioufse  of  the  debt- 
or, otlu  rwise  he  sliould  not  be  alli.ttcd  to  support  his  action — ihecon- 
sequence  of  which  is,  that  the  del'tor  nccl  not  ri-quost  a  place  (o  be 
appoiiiti  d,  but  a  being  read^'  ai  liis  own  liou.',' ,  woiitd  be  sufficient.— 
Judge  Wii/iiAMS  sail),  there  hM<l  been  snch  ilecisions,  foundrd  upon 
proof  thiit  sicli  was  the  gHturjl  course  of  that  s;)ecie-.  of  trade  that 
tlie  contract  C'  ncrned,  an<l  tliat  Ihe  ge  neral  practice  of  the  country 
^assuch  Willi  i'i:^pect  tn  rontracts  ot  that  nature  ;  but  that  tlu  gene- 
ral rule  ol  law  wa?  as  laid  down  vt  supra. 

ticTZ.  —  Mr.  Joiisa  is  supported  in  what  he  said,  by  Ihc  case  of  .Irm- 
tleadv.  Mbeltun,  ilecided  at  Edenion,  1791.  There  the  Plaintiff  de- 
clared on  a  Covenant  to  d' liver  tar  and  other  aiticlcs  to  a  certain 
amoln>t — tin-  Defendant  pleaded  always  ready,  and  thi-  I'laimiff  was 
nonsuited  tor  not  provinj^  a  demand,  and  rf  fusal  or  neglect  in  the  De- 
fend.^ni.  This  decision  may  iiave  bfen  founded  on  such  .-vid<  nee  as 
Judge  WiiLiAMS  spolce  ol.  If  it  was  not,  it  seems,  tobe  directlyagainst 
the  rule  laid  dou  n  ii<  Co  Liti.  210,  b.  and  which  is  recognized  as  the 
true  one  in  many  oilitr  liooks. 

Note — Vide  Thompton  \    Gaylard,  2  Hay.  150. 

Averv  V.  Moore's  Executore. 
\ 
The  action  of  Trover  will  lie  aganisi   Executors  for  a  conversion,  in 
the  lifetime  of  their  lesiator,  alihougii  the  estate  may  not  have  been 
benefited  by  such  conversion. 

This  was  Qn  action  of  trover,  and  upon  not  guilty  plea- 
'  Vide, ante ded.  a  special  verdict  had  been  found,  which  now  came 
4,21,308.,,,,  ,„  be  argued.  It  stated,  that  Avery  left  the  horse  in 
question  in  the  possession  »[  James  McCay  ^  that  two  men 
came  With  a  bill  of  sale  and  cLiimed  him;  that  JVeCay 
refused  to  delivei  him  ;  that  they  then  applied  io  JUoore, 
who  wtfs  a  Justice  of  ihc  Peace,  to  cause  the  hor.se  tu  be 
delivered  to  theiu  ;   that  lie  swore  them  as  to  the  borse 


HWWOOD^S  RKPOItTS, 


416 


beina;  their  projjorty.  and  g;ive  a  writfeii  onltT  for  his  de-  ^^P*  ^^^^• 
livcrv,  which  McCay  disi-cf^urdod ;    npi)!i  wliich.  Moore,  -^^"""^^ 
in  a  jiassioii,   lunk  tioM  dI'  iho  t»ridh-,  and  delivpied  the 
h<)i-se  1')  thcin  himsflf.  uiid  they  h-d  Itiin  away — Moure  di-    l^SoSj 
ed,  and  Jivenj  nisitiiti-d  this  artioii  ai^ainst  his  exfrnmrs. 

Juda;t'  '.'  ILLIAMS — VVe  Iia\e  dccidcrl  in  many  instan- 
ces ihat  an  action  oftrincr  will  lie  aj^aiiisf  cxcrtitoi-s,  but 
that  was  in  cases  wIhm'C  it  apiieared  the  latate  of  the  les- 
talnr  had  hcen  benefited  by  ihe  fonvi'ision  of  the  thing 
that  was  tlie  -inhject  of  cnntest  :  as  if  a  man  taki*  my 
horse  and  sell  him.  or  kill  my  bullock  or  my  sheep  and 
eat  him  ;  here  the  estalf  of  thi-  lestator  is  benefited,  it  is 
saved  tlie  expense  of  the  piii-chase  :  but  the  decisions  have 
never  gone  so  far,  as  to  make  tlie  action  supiiortable 
against  executoi's  in  a  case  like  the  present,  where -the 
testator  disposed  of  llie  pr.iprriy  without  leceivi  1145  any 
benefit  from  it ;  yt-t  no  1  ase  has  ever  negatived  llie  jiosi- 
tion  that  tiover  will  lie  even  in  such  a  case  as  this. 

Jndjje  Haxwood — Troil  and  Hami'm  decides  ihat  an 
action  will  not  lie  as^aiost  execntiDs,  where  the  plea  is, 
"III  guilty.  I  am  imlnied  to  'hink  that  where  't  i>  a  part 
of  the  judgnient  as  foruiei-ly  rendered,  quod  tlcfrialens  ca- 
pialur,  the  action  will  not  lie  against  eX'Ciitors.  Judg- 
mc'ts  formerly  conrlnd  (1,  that  the  Defendant  cither 
should  he  in  misericordia,  oe  that  he  '•honld  be  lined,  et 
ipiod  cainalui- jtro fine  ;  and  litis  was  in  the  nature  of  a 
punishment  to  which  executors  were  never  liable  :  they 
succeed  to  tlie  estate  and  become  subject  to  such  actions 
only  as  dcitsand  a  satisfaction  from  fiiat,  not  to  ihe  ott'en- 
ces  and  |)iinishments  due  to  their  testators  ;  and  thejudg- 
meiit  in  ilic  action  (d'tro\ei-  is  not  quod  capiniiir.  8  Ih: 
SO  6.  It  Mas  in  substance  only  an  action  of  pioperty. — 
If  this  jiosriion  he  true,  the  reason  why  an  action  will  not 
lie  against  «'X<-ci!tors,  will  not  ap|dy  to  this  case.  There 
have  been  niany  decisions  iti  this  country,  that  tiie  action 
of  trover  will  lie  against  execut<irs  ;  and  ilie  reason  they 
have  gone  njion  is  generally  stated  to  be.  tliat  ilic  estate 
"f  the  lestator  otiglit  to  lie  liable  where  it  has  been  bene- 
fited by  the  convcision.  The.  example  is  usually  put  of 
killing  my  hnilock  and  c';itiiig  him,  or  taking  my  bul- 
lock and  selling  him  ;  but  I  can  sec  no  difference  in  point 
of  justice,  belivicn  ihes'  examples  and  that  of  taking  ,iiy 
bullock  ami  giving  htm  away  so  that  tlie  •  wuei-  loses  him  : 
the  injury  to  the  owner  is  as  great  in  the  latter  instauGo 


417  IlAYWOOU's    UEl'OU  i'S. 

S«P^1796.  as  in  tlie  former.  At  tlip  last  Wilmington  term,  tiie  court 
^^'""'^'^^  liiid  siicli  a  Citse  iindi-i*  rotiHidpratiiiii,  nn(\  decided  ;i;;aiiist 
tlic  cxe(■|ltor^s,  and  ajyaiiisf  I  lie  casp.  of  Uamly  and  Trotf, 
ii))<)ii  the  authoiity  of  tlie  i  ises  rornierly  decided  in  this 
country.  One  great  reivm  ol"  that  decision  was,  lo  |ire- 
(364)  vi'iit  a  defect  of  justice  ;  for  where  the  property  is  tor- 
tiouslj  taken  and  dispo^rd  of,  or  ';;ivL'ii  away,  as'iiere, 
the  action  upon  the  case  foi-  an  assumpsit  will  not  lie  a- 
gainst  the  exi-cntors.  trespass  will  not  lie  against  ilioexe- 
<'iitiirs,  and  if  trover  will  not,  the  injured  \)Arty  is  with- 
out-red  resn,  althuiigli  it  is  evident  some  action  of  |H-oper- 
ty  siiould  be  maintainahle.  NVe  will  consider  furtiicr  of 
tliis  case. 

Afterwards  at  Salisbury,  during  'hesittingof  the  court 
there  the  nexi  term,  the  Judges  Williams  and  Uatwood 
certified  tliat  tliis  action  was  maintainable  against  the 
executors,  and  directed  the  clei-k  to  enter  up  judgment, 
and  to  issue  execution  thereupon. 

Note. — Vi/ic  McKinnie'a  Ejt'rs.  v.  Oliphant's  Ex'rs.  and  the  note 
thereto,  ante  4. 

Davison  v.  Mull. 

Th.e  )>lea  of  "  .surrender"  by  bail,  must  stiite  whether  the  surrender 
was  made  to  the  comt,  or  10  ihe  Slirr.iTout  of  court,  or  it  will  be 
bad  in  term,  dhder  our  .-.cl  of  1777.  Rev  c.  115,  s.  19,  20,  the 
bail  msx  surrend  rat  mv  lime  bf  jure  fin  •!  jud<niriit  aj^ain^t  him. 
The  plea  puis  darrein  coniinuance  df  ilie  surrender  may  be  lefused 
by  the  courl  in  cases  i.f'hardslnp,  unless  li.e  Uefe::diint  will  submit 
to  ihe  terms  of  p:ijing  costs.  .\ii  appeal  from  the  County  to  the 
Superior  Court  nullifies  the  judgment  of  the  County  C.mit. 

Plea,  and  demui'rer,  which  stated  that  Mull,  as  SlierifiV 
arrested  a  man  upon  a  capias  nd  respondendum  and  took- 
no  bail.  Car/soit  obtained  jiiJgmcnt  rig.,iiist  ili,-  pei-son 
arrested,  and  took  out  a  capias  ad  sutisfacictidum.  which 
was  reluriiert  non  est  inventus;  he  then  took  nut  a  sd.^/W. 
against  >V)(/^,  as  bail,  in  the  Count)  Court;  and  after 
judgment  upon  the  sci.fa.  in  th>-  County  Court,  .ViiW  up- 
pealed  to  thisccuit  ;  and  after  the  soil  liad  d<|ii  nd  'd  here 
some  lime,  there  was  a  plea  pitis  darrein  contnimiuce  put 
in  by  the  Defetidaiit,  vvhiih  stated  that  >\\r  Otfcndant 
ill  the  original  action  had  been  surrendereil,  witli  an  aver- 
ment that  he  had  lain  ii.  prison  twelve  month!*.  The 
demui'ier  was  spei  iai.  iind  stated  foi  lanse,  that  the  plea 
did  not  set  forth  to  w  hom  the  surrender  was  made,  whuther 
to  iho  court  or  to  the  Sheriff. 


Haywood's  kepouts.  -118 

Per  curiam — It  is  iiisistwl  l»y  tlie  riiiiiitifF's  counsel,  Sep.  1796. 
that  (lur  act  iiitnided  to  ;»iit  Iiail  iiiioii  the  saint'  t'lxitiii^  ^■^'''''''•^ 
here  HH  ill  Eiis^laiid  by  the  rules  of  the  rommoii  law  ;  and 
thi-ir  tin'  C'iiidi;i(iri  of  the  i'<'roji;niz;iiicc!  w.is  firfeited  by 
a  non  est  invenius  letiii-ucd  to  tUeeapiqs  ad salisfncieudu'tn; 
for  n|)'>i)  tliat  return  it  uppcared,  the  Di-lt'iid-int  liad  nei- 
ther |)aid  tilt-  money  mil'  sui-rendi'icd  liiniself  lo  prison  j 
but  by  the  favour  of  the  court  the  bail  arc  di.s(  hvirjijertblo 
if  tliey  surrender  before  the  return  uf  the  secotid  sci.fa. 
but  that  surrender  inusi  he  ninie  lo  tliL' court.  It  i->  very 
evident  that  our  Ligislature  intcuded  to  allow  ty  bail 
greater  pi-iviici^es  than  were  allowed  by  theconiniin  law 
in  the  Enj^Iisli  practice.  Oar  la\v  allows  a  surrender  to 
the  Shi-riH';  and  a  snrr'euder  at  any  time  befure  final 
judgment  asjainst  the  bail,  shall  discharge  iheni.  1777", 
c.  2,  s.  19,  20,  79.  As  lo  the  judgment  of  the  County 
Court  which  has  been  riiidiied,  tliat  was  not  a  final 
judgment,  it  was  suspended,  or  ratliei'  nullified  by  the 
appeal — so  niucli  so,  that  there  can  never  afterwards  be 
any  procei  dings  ujioii  siifli  judgment  after  it  is  .ippcaled  CggS^ 
from.  Whercfnre,  as  m  the  geiuiral  queslion,  whether 
bail  may  sui-rendcr  under  such  circumstances,  we  are  of 
opinion  for  the  Delendant.  It  niaj  indeed  operate  hai'd- 
shi|»  in  the  case  staled  by  ihe  counsel,  where  a  Defend- 
ant comes  in  and  is  surrt-ndered  al'ler  the  Plainiiff  has 
prosecuted  the  bail  through  the  County  Court,  at  a  great 
exjience,  inio  this  cour"  :  liut  then  it  is  iiiMhe  discretion 
of  the  court  uhciiier  they  will  receive  a  plea  puis  darrein 
contiuunnce  ;  and  tliey  may  receive  it  upon  tlie  terms  of 
the  Defendants  paying  all  costs  to  that  time,  and  the  in- 
justice spoken  of  by  that  means  be  avoided.  As  to  the 
form  of  the  plea — e\ery  plea  should  disclose  all  such  cir- 
cumstances as  Ihe  law  nquires  ti>  make  up  a  valid  de- 
fe'icc  against  the  Plaintiff's  action,  and  ihe  omissioti  of 
any  mateiial  circumstance,  withuui  which  the  matter 
pleaded  would  not  be  a  good  discharge  in  law,  makes 
the.  iilea  invalid.  Now  the  law  requiies  the  suri«nder 
to  be  made  eiiher  in  court,  or  lo  tlie  Sheriff  in  the  recess 
uf  the  court ;  and  this  is  mai.erial  to  hi-  set  forih,  that  the 
Plaintiff  may  know  bow  t«  leply  i!  false;  for  if  it  be  alhged 
as  a  surrender  in  court,  the  replication  is  nttl  tiei  I'vcord. 
If  out  of  Couri,  the  fact  is  denied  ami  refern-.,  to  the  de- 
cision of  a  jury.  Unless  it  he  sei  foitn  to  wimm  the  sur- 
lender  was,  it  is  impossible  to  know  how  te  reply — there- 


419  maywood's  uepouts. 

Sep.  1796  f„,.p  ti,p  p]ea  jg  1,3,1  JJ3  t,,  tiie  p[„.,n  in  which  it  is  pleaded. 

^  ^*'^«*^  Tlie  (loiniii  ror  does  not,  as  i"  contended,  admit  tlie  fact 
of  a  surrender.  A  general  di'murrer  admits  tlie  fart,  and 
insists  it  is  not  suffirient  in  lawfortlic  pnrpose  to  which  it  is 
adduced:  but  wherea  fact  if  well  pleaded  inighthave  been 
suflicienf,  but  it  is  so  pleaded  that  the  other  party  cannot 
kno«  how  to  controvert  it  :  or  in  oilier  words  vvhere  the 
far  t  is  improperly  and  informally  pleaded,  and  the  de- 
tnurii-r  s|)e(ially  sets  forth  the  cause  thereof,  if  does  not 
admit  the  fact,  bul  refers  the  plea  to  the  court  for  ille- 
gality und  itiforniiilitv.  However,  as  the  substance  of 
this  pica  shews  a  good  discliari^e,  it  is  hard  the  party 
shonid  be  charged  by  mispleadiirg — we  will  delay  giving 
judgment  for-  the  present,  atid  lecommend  to  the  parties 
an  amendment  of  the  pleadinjjs,  so  that  judgment  may 
be  given  u|i^)n  the  merits.  As  to  the  two  cases  not 
yet  plraded  to  in  this  court,  the  Defendant  may  now  plead, 
paying  the  costs  up  to  this  time. 

Note, — Tlie  casi-  of  Peace  and  JCittrellv.  Person  8c  Gordon,  1  Murph. 
188,  ■  eciiles  lliat  tlif  j-urrender  of  the  principal  by  his  b^ilat  any  time 
befiuc  filial  jiid,:n)rni  against  ihem,  will  discharge  them,  and  entitle 
thim  t'  the  costs  of  the  aci.  fa.  Bui  this  is  now  altered  by  llie  act  of 
1827.  c.  15,  HS  to  the  costs  which  may  accrue  in  the  case  where  the 
bail  IS  dischaigid  by  the  d  ath  or  surrender  of  Hie  principal  afti-r  the 
term  ai  whicli  the  bail  is  bound  to  appear  and  plead  to  Wm.- sci  fa.  As 
to  effect  if  an  :ipp<  al  from  an  Inferior  to  a  Superior  Court,  see  Murrn 
V.  Smith,  1  Hawks  41. 

O'Neal  V,  Owens. 

An  attachment  bond  is  fiood  without  attestation.  An  attachment  mubt 
issue,  if  the  Plaintiff  makes  the  proper  affidavit,  whether  it  be  true 
or   not. 

Attachment,  and  plea  in  abatement,  that  the  atfach- 

.,,/..>     meiit  bond  was  unatteslrd.  and  no  suit  could  be  brougiit 

^       ^    ii|)i>n  it.     2n(l,  that  tlie  Del'i'iidant  was  not  aboui  to  le- 

move,  nor  had  shewn  any  symptom  of  such  tiisposition. 

but  was  at  home  at  the  time,  when  the  attnchment  was 

levied. 

Per  cwrinm — Although  thr  Defendant  was  not  about  t.» 
remove,  if  the  I'laintifl' suspect  d  it,  so  that  in  conscitmcc 
he  could  swear  the  Defeinlant  was  Hbinit  to  do  so.  be  may 
take  the  oath  ;  and  it  is  the  duty  of  tlie  Justice  of  Pence 
tu  issue  the  attathment.  If  ihe  Defendant  sustains  da* 
mage  tliereby,  he  has  remeiiy  upon  the  attachment  bond. 


HAYWOOD'S    REPORTS. 


420 


ov  if  the  oafh  be  false  and  malirioiis,  he  may  indict  for ^ep.  1796. 
perjiiiy  ;  hut  the  proctedinj^s  sha'l  so  on.  This  lias  hcvu  ''-^''^^^'^ 
often  (Ucidfd.  As  to  the  bond  liein.s;  unattested,  it  was 
decided  lately  c,t  Fayette\ille.  that  an  action  of  deht  will 
lie  on  no  nnaitcstrd  tii>iid  {  and  a«  to  the  cimdition  being 
only  to  paj  in  rase  of  failure,  .^iich  nsts  and  (I:itnae;es  as 
shall  ;ucnie  ihereon — these  ar'e  not  the  •>  ordspresn  ibecl 
by  ilie  a(  t,  but  this  \ariance  is  nnt  nl  adid — the  only  de- 
fc(  t  alleged  by  the  pha,  is  non-attestation  ;  but  had  it 
pointed  out  the  variance,  it  would  not  Inive  been  fatal  ; 
because,  the  act  allows  all  f  .rms  a.ereein.e  in  snhstance 
with  that  prescribed  in  the  act,  to  be  ^alid — then  what  is 
the  incanine:  of  the  words  used  in  the  rontlition,  "da'tia- 
ges  thereon" — surely  damages  to  accrue  in  or  Ity  this  at- 
tachment, and  for  such  damages  relief  may  i)c  had  by  a 
suit  on  this  bond.  But  it  is  not  tiecessary  to  tjivp  any 
opinion  ui)on  this  point — ^let  the  pleas  be  overruled.  A 
respondeas  agister  was  awarded. 
Note Vide  Ingramv.  Hall,  ante  193. 

Chambers  v.  Smith. 

Any  omission,  neglect  or  delay  of  the  Clerk,  omny  conlrjvance  of  the 
adverse  party,  or  the  improper  conduct  ci\  the  Comity  Court,  in 
granting  an  ippeal  where  properly  applitd  for,  is  suflicienl  to  en- 
title the  parly  to  a  Mr/joror/,  und  a  new  trial  will  be  iiiQnie<iiately 
granted  in  the  court  above. 

Certiorari.  Per  curiam — It  is  stated  in  the  aflidavit 
of  Chambers,  that  after  the  trial  of  the  issue  in  this  action 
in  the  County  Court,  he  moved  for  an  app 'al  ;  and  after- 
wards during  the  silting  of  the  court,  he  ofteted  stifRcient 
sureties  for  prosecuting  the  appeal  with  eH'ect,  hut  tiiat  the 
Clerk  being  not  ready  with  the  bond,  and  telling  i-im  it 
would  do  as  well  to  give  the  bond  at  tt  e  next  County 
Court,  which  happened  before  the  sitting  of  the  Snpeiior 
Court,  lie  retired;  and  at  the  next  conrt  he  applied  again, 
and  was  then  fold  by  the  Clerk  It  was  too  late.  II"  this 
be  a  true  statement  he  is  entitled  to  a  new  trial  in  this 
court,  in  the  same  manner  as  if  liie  app(  al  had  been  re- 
gularly bi ought  up.  The  derisions  liave  been  uniform, 
that  after  the  party  prays  an  appeal,  and  offers  or  gives 
sufficient  sureties,  and  he  is  defeated  of  his  appeal  by  Hic 
neglect,  >>mission  or  delay  of  tlie  Clerk,  or  by  any  con- 
trivance of  tiie  ad>erse  party,  or  by  any  impioper  con- 
duct of  the  County  Court,  as  if  tlicy  adjourn  after  the  tri- 


4^1  Haywood's  nEPORrs. 

Sep.  1796.  al,  to  prevent  the  party  from  applying  for  the  appeal — 
""^^^"^^  in  all  surli  rases,  this  cniirt  will  pjrant  a  certiorari,  and 
(36r)    nrdci  a  trial  lierp,   wiflinut  ciiqiiirini^  into  ilip  motives  of 
the  p>rty  prating  the  appeal,  or  ii'to  the  merits  if  his 
cai.se  ;  for  hy   the  laws  »f  the  ro;intry.  he  is  entitled  to 
his  appeal  whenever  he  thinks  proper  to  rrave  it,  an<l  he 
ought  not  to  he  difeated  of  his  pii>ile.a;e  l»y  the  ronduct 
of  others  :  and   we  would  now  order  the  new  trial  his 
counsel  prays  ftw.   but  for  the  rontrary  alBdavits  which 
rendei'  it  doiihttul  wlK'tlnr  he  did  .iffer  the  sureties  as  sta- 
ted in  the  affidavit,     Whrrefore  let  this  raiise  lie  over  till 
the  first  d;iy  of  next  terni.  (hut  the  Flaintilf  may  produce 
the  affidavits  oC  the  sureties  themselves  who  were  offer- 
ed, or  such  other  affidavits  a--  he  may  think  proper. 
NoTK. — I'ide  Anonymous,  ante  302. 

Anonj  mous. 

Certiorari.  This  cause  stood  on  the  iUk  ket  of  causes 
for  triiil,  and  was  said  hy  tiie  counsel  Cor  tlie  Plaintiff  in 
the  cerfiorari,  to  have  been  obtained  in  open  court  ;  and 
he  insisted  that  whei-e  a  cw/iorari  is  so  obtained,  the  cause 
may  he  set  down  for  trial  v\iihont  any  further  ar&;ument. 
\  Per  curiam — Writs  of  certiornri  are  granted  either  by 

a  Judge  out  of  court,  or  u|k>u  affidavit  anil  rule  to  shew 
cause  ill  court,  and  souietimes,  though  irnegulai-ly,  up- 
on affidavit  only  in  court.  In  the  first  instance  the  cause 
should  be  set  down  on  the  argument  docket,  and  does  not 
stauil  for  trial  until  the  court  have  expressly  ordered  a 
ne.Vi  trial  to  be  had  ;  and  whilst  on  the  argument  dock- 
et, it  may  be  opposed  by  contiti>r  affidavits.  Where 
granted  upon  affidavits  and  rule  to  show  cause  in  court, 
it  siHtids  for  trial  without  further  argument.  But  when 
granted  upon  affiidavits  only,  without  a  rule  to  shew 
cause,  it  is  in  the  same  situation  with  a  certiorari  grant- 
ed by  a  judge  out  of  court.  The  adverse  party  must  have 
an  opportunity  to  shew  cause  against  if,  and  no  new  tri- 
al is  ti'  he  had,  till  after  he  has  had  a  day  in  court,  and 
fails  to  appear,  oi  appears  to  it  without  efti-ct. 

Note.      Vide  Dairtey  v.  Davis,  ante.  280.     Jltanhn  v,  (hii/,  2  //<i;i. 
uood.  345. 


HAYWOOW'S   KEPOHTS.  422 

T>     I  •  n    II-  Sep.  17Q6. 

Perkins  v.  Bullint'ep.  ' 

AVIiei'e  a  matter  !■:  prcipfvly  detcrniinahlr  at  law  and  the  law  can  givR 
compl'lc-  ic(!rcs«,  Kqnity  tti!l  no'  interfere.  F,xiriiti"n  ii|)(>u  a 
jmljrtpeiil  afler  ;.  ye.r  and  a  dty,  and  alter  dcat'i  of  tlie  Defendant, 
without  an>  snre/acioj  is  irregular  ;  and,  if  in  llie  County  Court 
may  be  avoided  by  vrit  of  error,  or  if  it  was  in  the  Suptrior  Court 
by  evidence  in  ejectment,  if  hjnd  was  sold  under  ii.  ' 

Tln>  hill  Htrttrd  that  Perkins,  in  tlie  year  17'84,  piir- 
ciia.st'd  a  ti-act  of  land  n!'  "no  Griff hfim.  and  had  it  tcj^u- 
larly  ciinvfyed  ti)  him  and  jiaidllu-  piu'cha^o  money  ;  and 
sevpti  fir  <'it;ht  years  ■A'i(iWA'.i\'^,  Bvllingcr  ha\iiig  dis- 
rnvoied  tiiat  (ini>  Michael  Delamj  had  a  judeincnt  asjain^t  (308") 
'  Griffham,  innrhavrd  tiie  Ki'ine  of  him  :  ilmt  Griffhnm 
died,  and  thai  BiilHnger,  ]»'t\u-  imme  nl  Jielmieij.  willioat 
any  set.  fa,  against,  the  ht'i?-s  or  t'XtTutor-.,  took  ont  a  fi. 
fa.  and  U'vii-d  it  on  Vn^  iMods  port  hascd  hy  PerUins,  and 
cau-scd  tlicm  to  be  sold,  and  pnrrliased  Micut  t>!  ili.-  Sin'rilT 
liimself,  and  h;id  thrm  ronvcycd  (o  him.  And  hs  to  tfiis 
part  of  t!ic  rasr.  the  hill  pi-ay d  that  ttie  conve^jnce 
might  be  set  /.side,  ami  the  deed  deccci'd  to  he  Kiveii  iii) 
and  canrelk'd.  Ii  lh<^ii  stated  tlie  iiialcrialily  of  the  les- 
timony  of  some  witnesses,  ai|d  jn'ayed  that  that  testimony 
might  be  perpettiatcd.  Tliere  was  a  deiatirier  to  thefifst 
part  of  this  hill,  for  Hiat.  t!ie  inatlei'S  theicin  set  Coith 
is  [U'opeily  deterininahle  at  law. 

Per  curiam — Wiiere  a  mat  tee  is  jd-ojK-ily  deleeininablc 
at  law,  anti  the  law  can  .e;ive  lonijili'ie  relief,  a  Court  of 
Etjiiity  will  not  iiiterfeec.  It  is  not  staled  in  this  bill 
when  Delanei/s  judgment  was  obtained — .suppose  it  to 
have  been  obtained  helore  the  sale  (o  Pcrkinf,  the  execii- 
tino  isstied  after  a  yeai-  and  a  day.  and  alter  the  death  of 
Griffhnm,  without  any  sci.  fa.  and  theeeloie  the  execu- 
tion is  ireegular  and  voidalile,  and  may  he  avoiilefl  if  the 
judgment  was  in  the  Comity  Coiiit  i)y  vsiit  <)f  c-ior,  or 
if  ill  the  Superior  Court  by  t«kiiig  advantage  tlnienf  in 
an  ejectment,  eitliee  as  PlaititiflTor  by  way  of  defence. — 
If  Z>e/«He!/'s.jiiilgmcot  whs  afiee  tiie  sale  to  Perkins,  then 
tlie  land  Coidd  not  he  affected  by. any  exetutirin  issucti 
upon  it.  and  Ilic  SIn'filf's  sale  is  void.  Indi-cd  it  has 
been  decided,  liial  aji  fa.  affects  lands  in  tiiis  coniitry 
but  f  1-0 m  the  lesle,  and  not  IVcnn  the  Jinigtnent,  and  that 
the  jadgmeiit  only  prevents  a  sale  by  the  ownef.  \c- 
cortiiug  to  that  'lecision  it  may  be  doubtl'iil  'Aheijiei  if 
this  judgment  of  JteUmeifs  Um\  been  regularly  revived  by 


423  havwood's  kkpouts, 

Sep  1796. gg^  I'll ^  a.c;<')in»^  tbr  Iieii'H  unci  tcirptmrtnts,  wlipUicr  tlie 
^'^~''"^*'  laiidH  ill  till-  liairds  uf  Perkins  were  liable  tn  be  iflfcrted, 
as  \\\f  Ji,  fa.  would  then  issue  in  roiiseqiietire  <if  a  new 
judgment.  However  litis  may  lie,  it  is  eviileui  as  the 
present  case  is  stated,  tiia'  the  roniplainant  has  remedy 
at  law.  and  that  there  is  rm  ocrasioii  for  him  toroinr  into 
Equity  fur  any  relief.  Whetefofe  let  (he  demiirrfr  be 
allowed  ;  and  as  to  the  other  part  of  the  hill.  v.  hichseeks 
to  perpetuate  his  testimony,  as  th>  re  is  no  ohjertion  made 
thereto,  let  the  Piaintiflf  liave  loininissions  to  take  depo- 
sitions. 

Note. — Upon  the  first  point  see  Glasgow  v.  Flowers,  and  the  refer- 
ences in  the  note,  miie  233  lit  Hester's Mm'ts-  v.  Burtov,  it  uaslieltl 
that  an  execution  wiidi  isMiefl  upon  a  jiiHgrncni  utif  a  v^ir  and  a 
(l^y  was  irr.t;i'lar,  and  il  wis  set  ;isi<le  upon  mo'inn  2  Huy.  136. — 
Bowen  &  others  \  Lanier,  N.  C.  Term  Rep  241,  ilecitKs  that  trrorsiii 
luw  ranno'  be  assifi'neil  lo  process  in  n;iture  of  an  execution,  for  that, 
ifiin  gular,  must  be  set  asi'le  in  a  ilifft  rent  way,  «s  ''y  mation  super- 
aedeas,  ov  the  tike.  The  ca>e  of  Ox/ey  v  Mizle  &  others,  says  that  the 
regularity  of  an  execut  on  c;innot  be  questioned  in  tH\  ac/tion  of  eject- 
ment against  a  purchaser  under  a  Sherifl  's  sale.  3  .\lurph  250.  This 
case,  tind  also  Weaver  v.  Cryer  and  Mnore,  1  Dcj.  Rep-  337,  hold  that 
an  execution  issuing-  upon  a  judgment  which  s  more  than  a  year  and 
a  day  old,  is  en-oneous.  It  si  <  n.s  thai  tlie  position  in  ih:'  principal 
ca.se  with  regard  to  the  irn  gularily  of  the  execution  is  correct,  but 
not  so  with  respect  to  the  mode  of  taking  :iclvaiitair-e  of  the  error,  nor 
indeed  whether  il  can  be  tatien  advantage  of  al  all  against  a  purchaser 
under  such  iiregtilar  execulinn. 

(369)  Welch  V.  Wutkins  and  Pickett. 

A  note  was  given  by  the  I'lainiiff  o  f^a<W;w fT lauds,  which,  it  turn- 
ed out,  II  a//iirs  ncyr  hid:  PFuZ/nns  cinui't  recover  on  the  note, 
and  as  the  note  (being  for  the  delivery  of  specific  articles)  was  un- 
negoliable,  Pickett  is  subject  lo  the  same  objection. 

The  bill  stated  that  W^HifeJns  pretended  to  be  possessed 
of  lands  on  (he  CiiiHberl.ind  riM-r,  of  gaud  quality,  and 
enticed  the  Complainant  to  purchase  1000  acres,  for 
which  the  Complainant  jjave  a  note  'o  deliver  a  jb;oo(1  wa- 
gon and  team  b'  such  a  day,  ff'atkins  at  the  same  time 
givina:  his  bond  to  make  a  title.  Afterwards,  U^'atkins 
was  ajiplieil  to  for  the  title,  hut  did  not  make  it,  and  in 
fact  Was  lound  to  possess  no  land,  and  confessed  he  had 
not  any  there  ;  but  before  this,  he  bad  endorsed  the  note 
-  to  Pickett,  tf'iitkins  failed  to  answer,  and  iln-  bill  was 
taktii  pro  cmfesso  as  to  him.  Pickett  answered,  and  in- 
sisted he  had  purcbasiid  the  note  for  a  valuable  coiiside- 


IhWWOOD'^S    UEPORCg,. 


434 


ration.  The  bill  fuiiluT  s«t  fo-tli.  tliat  rickett,  in  tlie Sep.  1796. 
n-Ame.  o(  Tf'ulkitis.  Iiitil  (ibtained  ju(li^ini"ii  njiou  titc  note  ■-^'^'''''"^ 
for  piiiiiiils,  and  h.kI  i-fcei»eil  £l80  anil  liad  al'ier- 

wai'ds  taken  out  cxccntioii  for  tin-  full  ainount  of  tlit;  judg- 
ment. 

Per  curiam — Tiii'  bill  states,  and  it  is  not  denied,  that 
the  note  whs  njivcn  foi-  lands  sold,  to  wliicli  the  vendor 
cannot  make  a  title.  He  canno!  iheirl'oie  in  equity,  de- 
mand payment  of  (he  money,  and  is  noi  entitled  to  a  re- 
cou'S'y  of  it.  In  llie  nexi  iilace,  this  nnle  is  not  ni-gotja- 
blc.  and  tliereloie,  flckclt  stands  in  the  same  plaee  as 
Watkiiis  himsell'did  wjUi  resperl  to  the  note,  and  ali  eqni- 
talile  difenres  tliaf  nii;:;ht  iiave  been  set  up  agaiiis'  it. — 
It  is  jmmateiial  to  fVelch,  v\hether  he  .^avc  a  valuable 
consideratiiin  for  it  or  tiot  (o  iValkhis.  Whorefoce  let  the 
injiinciioii  be  made  peipetual.  Had  the  pi'ayer  of  this 
bill  extended  far  I'nongh,  we  \\oul(i  have  made  Pickett  rc- 
i'und  the  money  he  lias  icceived. 

Note. —  Vide  Jordan  v.  JRiach  &  Ilormblow,  2  Mur.  30. 
Martin  v.  Spier  and  Montgomery. 

A  .iiid  15,  setUecl  accouii's,  .'nul  a  balance  of  £  47  was  fuund  due  to  B, 
and  A  signed  a  wiitiiig  to  Uiat  r-fluct,  whicli  B  assigned  to  a  tliii.d 
person,  who  surd  A,  and  recovered  judgiof-nt.  A,  filed  a  hill  for 
an  injunction,  sctliii;^  forth  euors  in  caicujatian,  md  statint;  tliat 
by  tli- agreement  o(  the  puities,  tile  papir  whicli  he  ha.l  signed 
was  nut  to  be  deemed  a  piomissory  note.  The  answer  lenied  ..II 
(Ik-  parts  of  llie  bill  bin  the  errors.  Hatwood,  Judye,  consented 
witli  WiLHAjis,  .In'dge,  that  (lie  injunciion  should  be  dissolved  as  to 
all  but  'he  errors.  But  llAvwooii  said,  that  it  should  be  dissolved 
ill  toil,  for  tlie  l.ivv  would  have  adinitieJ  every  dfi  nee  which  could 
be  made  o.i  the  instrument,  .is  that  it  either  Wis  un  ici^otiable  in  its 
nature,  or  the  assignee  jiad  notice  of  the  di-fence  previous  lu  the 
tiSsignnient.  And  if  the  assijinee  had  not  sucU  notice,  lher<-  could 
be  1.0  defence  either  at  law  or  Equity,  where  the  instrument  was 
ne,;oti.ible. 

This  was  an  injunction  bill,  whit  h  slated  that  there 
liad  b.'cn  mutual  dealings  between  Martin  ^  Spier,  wluch 
they  ai'jtisti'il  in  1780,  at  wliich  time  iln'ie  was  a  balance  /^-^% 
of  iilO  and  no  more,  doe  to  Spier.  Tbai  ^omc  'i'ne  af-  ^  ' 
terwards,  their  dealings  still  eoniinning.  tin  y  camr  n  an- 
otlier  settlement,  at  which  lime.  Spier  exhibited  (iie  arti- 
iks  whirh  r(nn|)o-,ed  his  fio'tui  i-  atTomit,  and  did  not 
make  the  last  balance  (lie,  first  arii.Io  in  ihe  new  aicotiiit, 
and  (hat  Spier  promised  iipnn  this  latter  settlement,  if 


425  IIAVWOOU'S    REPORTS. 

Sep.  1796.  rtiiv  errors,  otnissiuii.s  or  niiscalctilatioiis  should  appear 
■^^"^""^^  ofi  oillicc  sitle,  tin-  game  sU.)>iil<l  be  rectifie'l.  riic.  bUl 
iliL'ii  staled  si'vei-al  inis-ciii.rics  in  tlic  account  of  Spier, 
iDakiiig  tliesiiiuH  cliarj^cil  .i^imudt  to  more  llian  tliey  were 
staled  at  in  i'uriuer  accoiiiiis  exiiibiicd  ;  and  it  also  jjuiiit- 
ed  out  several  errors  i>y  iiiiscalcuiations,  and  staled  sev- 
eral sums  ol'  ujonev  Willi  vvliicli  lie  ouij;|it  to  liave  been 
credited — all  wliicli  errors  wlieii  lectifii'd.  chan,y;ed  the 
balance  of  accouciis  in  Ills  fa>or.  Tlie  bill  fnrtlier  stated 
lliaf  upon  the  last  settlement,  tlierc  was  a  balance  struck 
of  iG47  in  lavor  of  Sfucr,  ami  a  willing  was  drawn,  pur- 
pi)riing  that  a  selliement  was  made,  and  tliaf  tiic  bal- 
ance a()|)eared  to  be  £4T  aii<l  was  si.i^oed  by  .Martin  ;  but 
it  Was  iioi  iiiteiidcd  as  a  in-iniiissoi-v  note,  and  tlie  par- 
ties a.i^recd  il  slioul'l  not  bcso  considered.  Tbat  the  mis-  ' 
takes  aforesaid  were  discovered  after  the  sii;nature  of  the 
wriliuj;,  and  that  Jloutgomenj,  the  otln'r  Defendant,  hail 
notice  of  them  |ire\ious  to  the  as,si(^nin>'nt  of  riie  said  wri- 
ting to  him.  'riiai  afierwards.  Spier  assigned  the  said 
wriiing  lo  Moiitgomenj.  who  sued  .Uartin  for  the  money 
mentioned  in  the  note,  and  recovered  a  judgment,  &c. — 
The  answer  deiiird  all  |i,irts  of  the  bill,  except  tticeriors 
ill  cliargii.g  the  sums  of  several  articles  higher  than  was 
staled  in  ihe  accooni  Uipl  before  the  last  settlement ;  as 
to  wlijch  no  answer  was  given. 

Judge  Williams — I  am  of  opiuion  the  Injunction 
should  be  dissolved  as  to  all  except  the  errors  unanswer- 
ed ;  and  that  Ihe  a<'coiint  should  be  referred  to  the  Mas- 
ter, who  .should  report  lo  next  court. 

Judge  Haywood — 1  am  for  dissolving  in  toto,  not  lie- 
cause  1  think  the  answer  has  denied  all  purts  of  the  bill, 
hut  bei^Hiise  the  bill  iisill'  shews  no  sutticit-nl  cause  for 
coming  into  this  court.  Alter  a  verdict  at  law,  a  man 
may  apjily  for  rdiel;  but  ilun  the  case  wlnre  it  is  pro- 
per for  him  to  do  so  must  be  an  uncommon  one,  and 
must  be  specially  stated  so  as  to  shew  the  cause  tliere  is 
for  Ihe  interference  of  this  court  ;  but  the  rule  as  to  cases 
ill  general  under  whidithis  cmiies,  biingnot  disiinguish- 
cd  bv  any  jiec  uliarity  of  (ircumstaiKe-.,  is  that  where  the 
complainant  has  complete  relief  at  law,  Eijniiy  will  not 
(■''^O  take  any  I  ogi'izaiice  of  his  cause.  This  is  the  case  of 
tin-  eomiilai.iaiit.  Il,  as  he  slates  il,th.  wriiing  assigned 
to  Mmlgitmerij  w.vs  not  a  m'g'itiHble  one.  then  ii  was 
liable  ill  the  hands  of  Jiloidgomery,  nutwilhslaiidiiis   the 


HAYWOOD'S    REPORTS. 


426 


assignment,  to  evpi-y  dcfencf  and  objection  that  it  was  in  Sep.  1795. 
the  liands  of  *;;»cr  ;  and  at  law    he   niiglit   have   set    up -^'^•"^^ 
these  defences,  and  have  lessened  thiMlamages  by  proving 
the  errors  and  mistakes  stated  in  liie  bill  ;  or  il' the  writ- 
ing was  negotiable,  and  passed  into  the   bands  of  Mont- 
gomery  with    notice  of  ihf  defence  Martin  iutendcl  to 
make  against  it,  tln-n   iiotwitlistanding  iis  neg^itiability, 
he  might  at  law   have  defended  himself,  hy  proving  the 
notice    Montgomery   had  of  the   defence    intended,    pre- 
vious to  his  taking  an  assignment  of  the  note  ;    or  if  the 
writing  was  a  negotiable  one,  and  |)assed  to  Montgomery 
witjiout  notice  oi' the  defence  intended  to  be  sei  up,  then 
it  was  free  Irom  any  such  defcnc<'  both  in  Law  and  E- 
quiiy,  and  the  bill  ought  not  to  be  eniertnined.     It  is  true 
a  Court  of  Equity  has  a  jurisdiction  in  cases  of  account, 
concurrent  witli  the  Courts  of  Cotnmon  Law,everi  where 
at  law  the  party  complainant  may  bavecoinplele  redress; 
yet  the  complainant    musi  apply  to  the  one  or  tlie  other 
of  these   Courts,  and  be  conient  with   the  sentence  they 
pass.    He  is  not  at  liberty,    first  to  sue  or  defend  in  a 
Court  of  Law,  and  alter  trying  his  late  there,  apply  to  a 
Court  of  Equity.     If  he  could  not  ha\e  completely  de- 
fenilrd   himself  without  the  aid  of  a  Court  of  Equity,  as 
if  lie  wanted  a  discovery,  be  should  have  filed  a    bill  for 
a  discovery  before  the  verdict  had   passed  against  him, 
and  not  bavf  waited  till  after  the  trial,  and  then  dilayed 
the  Plaintiff  at  law  by  an  application  to  this  court  for  an 
injunction.      Were  this  allowable,  fvery  D'^temlant  would 
dela^  the  Plaintiff  at  law,  and   lend  off  his  c^iuse  as  long 
as  possible,  and  afterwards  have  the  benefit  of  his  de- 
fence by  getting  an  iiijonction,  and  still  Imiger  delaying 
the  Plaintiff.     I  am   not  for  going  one  step  further  in 
granting  injunctions  against   verdicts  at  law,  than  arc 
prescribed  by  the  rules  of  a  Court  of  Equity  as  laid  down 
in  the  books.     Injunctions  are  a  source  of  great  delay  to 
the  Plaintiffs,  and  of  great  expence  to  Defendants,  who 
are  generally  charged  with  thr  heavy  expi-nce-  of  a  suit 
in  Equity,  for  no  other  purpose  than  that  of  obtaining  a 
short  lespiie  for  a  few  inonihs  from  execution.     I  am  fur 
dissolving  in  toto,  but  as  the  court  are  divided,  I  uui  wil- 
ling, ratlii-r  than  no  dissolution  should  take  pU(-e,  tu  dis- 
solve except  as  to  the  errors  in  overchaiging  the  articles 
mentioned  in  the  bill. 


427  UAY wood's  RBFOUIS. 

Sep.  1796.     ji  ^ftg  (lissoivetl  accordingly,  except  as  to  those  arti- 
'^'^'"'*^  cics.  iuiil  the  account  referred  to  the  Master  to  rcjuirt  up- 
(Srs)    on  :•.!  ni'Xt  term. 

N<)T^■..—yide  Black  v.  Bird,  ante  27^,  Welch  v.  Walkins  &  Picktl 
ante  369,  and  the  references  in  ilie  note  to  each  case. 

Avery  t.  Bruncc. 

Per  curiam — The  rule  is  where  an  injunction  hath  been 
obtained,  and  dissolved  (ni  hearing  the  ansv\erof  the  De- 
fendant, and  the  Flaintiff  retains  the  bill,  if  he  takes  no 
steps  towards  preparing  bis  cause  for  hearing,  in  two 
terms  after,  the  bill  shall  be  dismissed  for  want  of  pro- 
secnuon.  In  the  present  case,  two  terms  ba\e  interve- 
ned r>inci'  the  <lissolution  of  the  iiyunction,  and  the  Com- 
plain^uit  hath  taken  no  steps  by  referring  the  cause,  tak- 
ing depositions  or  otherwise,  and  therefore  must  be  dis : 
missed.     It  was  dismissed  accordingly. 

Note.  Vide  Anonymous,  ante  162.  Anonymovs,  post  451.  Sair- 
ton  V  2  Hay.  296. 

SALISBURY.  SEPTEMBER  TERM,  1796. 

Hughes's  Administrators  v.  Stokes's  Administrators. 

Where  the  wife  acts  as  apent  or  serv»nt  of  the   hnsliaiid,   her  admis- 
sions against  his  interest  are  admissible. 

Assumpsit  for  board  and  lodging  of  the  intestate.  It 
was  proved,  (but  he  had  boarded  with  Hng;hes  from  Au- 
gust 1785,  to  May  1788  ;  at  whiih  time  Hughes  became 
insane  and  incapable  of  managing  his  affairs.  Tlie  keep- 
ing of  the  ta\ern  and  taveiii  hooks  was  however  continu- 
ed h\  Mrs.  Hughes  and  in  her  name,  and  Stokes  cnnti- 
luc^d  ('.  hoard  tliere  till  alter  May,  1788.  On  the  part  of 
the  Defendant  it  was  olfrred  in  evidence,  that  Mrs.  Hughes 
hatl  acknowledged  these  accounts  to  have  been  disclnrg- 
ed  or  nearly  so.  It  was  objected,  tliat  the  wife  siiall  in)t 
be  a  witness  for  nr  against  her  husband,  and  that  her  de- 
clai  :t(ions  against  her  husband'  sinterest  cannot  be  i  eceiv- 
eil.  r-)  this  rule  (hi  le  had  been  but  one  exception,  and  that 
w:vs  in  a  case,  wiiere  a  wife  had  hired  a  nurse  for  her 
child,  and  agreed  to  pay  su  much  per  week — this  was  al- 


Haywood's  reports.  428 

lowed  to  be  givRn  in  evideiire  to  charge  the  husband,  be- Sep-  iJ'Qe. 
causi;  it  was  ihe  prcippi'  busiiifss  of  the  wil'i'  to  nv.ikc  such  *-^'^''^*^ 
kind  of  roiin-iK-ts  tor  the  liusbaiid.     Strange  527. 

Per  curiam — Tlie  wife  in  the  pi'csent  rase,  acted  as  the 
as'nt  or  servant  of  the  husband,  and  received  bis  monies. 
The  business  was  carried  on  by  hrr,  luid  her  declarations 
should  be  admitted  to  discharge  Stokes,  upon  Ihe  sume 
piinciple  it  was  admitted  in  the  case  ciled  from  Strange. 
The  evidence  vcas  received. 

Note. — Vide  Emmersony.  Jilonden,  1  Esp.  Reportu  142.  Fennerv. 
Le-uiif,  10  Johns.  Rep.  38,  «it(;d  in  2d  Am.  Edit.  2d  Vol.  Phil,  on  Erid. 
221. 

Tindall's  Executors  v.  Johnston. 

A  note  payable  in  tobacco  is  not  negotiable,  unl  being  iinnegotiable 
in  its  creation,  it  cunnot  be  made  so  by  any  ec  post  facto  circum- 
stance 

Case.  Upon  a  note  assigned  to  the  t&stalor  in  liis  life- 
lime,  for  one  hundred  and  fifly  pounds,  to  be  pni(l  in  to- 
bacco inspected  at  ihc  Cheraws,  in  South-Carolina,  at 
the  miirket  price. 

Per  cuinam — Where  the  contract  is  sucli  that  it  may 
be  discharged  in  specific  aiticles,  it  is  not  negotiable  un- 
der the  act  of  1786,  c.  4.  wliicii  makes  such  bonds  nego- 
tiable as  are  for  muney  only.  It  has  been  aigued,  that 
the  bond  being  for  money,  to  be  discharged  by  the  deli- 
very of  tobacco  at  a  certain  day,  and  the  tobi'cco  bring 
not  then  delixered,  it  therrby  became  a  money  bond  only; 
the  condition  annexed,  of  its  being  disciiargeable  in  to- 
bacco, heing  for  the  benefit  of  the  obligor.  This  is  true, 
but  then  at  the  making  oi'  the  bond,  and  initil  the  day  of  (SrS") 
payment,  it  was  not  negotiable  ;  and  when  an  instrument 
ia  not  negotiable  at  the  timr  of  its  creation,  no  ex  post 
facto  circumstance  can  make  it  otherwise — the  oliligor 
having  not  originally  contracted  to  be  liable  to  ho  assign- 
ment and  its  consequences.  The  Plaintiff  was  nonsuited. 
Note.  —  fide  Jamieson  v.  Ftirr,  ante  182. 


429  Haywood's  hepobts, 

Sep,  irge.  Univet'sit.v  of  North-Carolina  v.  Johnston. 


might  be  shown  id  the  actjon  ot  ejectment.  But  he  resenfed  the 
question.  A  claimant  i)y  escheat  may  enter,  and  therefore  may 
sustain  ejectment.  A  curporation  must  make  its  leases  under  seal, 
but  the  lease  which  is  stsied  in  an  rj'Ctment  by  a  corporation  is 
not  to  be  proved,  and  will  be  presumed  a,  le(;al  one. 

Ejerlmcnf.  The  coiiiispl  for  thp  University  pnxlnrcd 
tlie  fPRistered  copv  of  a  trranr  fr<ini  Lord  Granville,  (\Ated 
sometime  in  the yenr  1'63,  \oom' Micklelienny.  nnil  proved 
th^t  he  left  this  cpmitry  within  a  year  or  two  aftrr  the 
date  of  the  grant,  iniendiriG;  to  pjii  to  Ireland  ;  and  that 
he  has  not  sinn-  been  heard  of,  nor  any  heir  of  liis.  He 
also  produred  the  act  of  1789.  c.  21,  s.  2.  "  That  all  the 
property  that  has  herciofnre,  uv  shall  hereafter  esrheat 
to  the  State,  sliail  be,  and  is  hi-reby  xestcd  in  the  said 
trustees  for  tlie  use  and  benefit  of  the  said  University," 
On  the  iithei'  side  was  prodiicid,  a  grant  from  the  State 
for  the  same  Tmils,  dated  in  the  year  1780.  It  was  ar- 
gued for  the  University,  that  it  \\oulil  probably  be  ob- 
jected on  the  part  of  the  Defetidant,  that  tiieic  were  no 
escheat  lantls  in  Noitb-Caroiina.  Esriieaf  being  a  con- 
sequence of  feudal  tenure,  one  nf  tlie  conditions  of  which 
wa-,  that  wliin  the  heritable  blood  of  tlie  tenant  failed 
(hriingh  w  ant  <if  relations,  or  by  corruption  "f  blood,  that 
the  feud  should  fall  back  to  the  lord.  Ii  must  be 
admitted  that  was  the  correct  idea  of  escheat — yet  it  is 
to  be  observed,  tliat  this  word  ha\ing  been  used  by  the 
Legislature  so  late  as  the  year  1789.  wliere  they  speak 
too  of  lands  thereafter  to  e.sclieat,  must  have  been  under- 
stood by  them  to  represent  some  other  idea  than  that  of 
escheat  according  to  its  strict  technical  meaning.  They 
intended  the  act  should  iiave  some  effect — anil  one  sense 
in  which  this  word  is  sometimes  used  even  in  the  old 
books,  is  this,  the  accidental  and  unexpected  falling  of 
lands  to  the  lord  for  want  of  heirs.  Another  sense  is, 
Avhen  those  who  held  of  the  King  (or  public)  die  leaving 
n«)  heir,  and  the  lands  relapse  injisaivi-  Co.  Lift.  13,  a. 
In  this  sense  it  is  used  in  the  act,  and  signifies  that  the 
Univer-iiy  shall  be  entitled  to  all  siicli  lands  as  have 
been  ohk  ai  pinpiiated,  tint  by  some  accident  ha\e  lieeii 
left   without  any  legal  proprietor — no  matter  by  what 


Haywood's  reports.  ^^^ 

means  they  came  irto  tliis  situation,  whetlierby  a  dyine;  ^''''; 
w  iiiidut  heiih.  or  b>  berominij  an  alien  to  the  govern-  ,  ^  ,. 
ineni,  as  was  the  ra>e  Willi  many  npoM  llie  ai'cptii.n  of  a  (.^' '*-' 
new  torni.  If  this  inteipieia'iori  be  rni-'prt,  it  will  lead 
us  to  ai'Uthri  question,  wlieilier  Miicklehenny  be  dead 
wiiiKMit  heirs,  or  became  an  alien  upoi'  tin-  delaration  of 
indipendencc.  Theie  is  no  [inHtixe  e>  idence  with  re- 
spect to  the  first  ol  these  points,  hut  'he  presum))ti\e  evi- 
dence is  sti'oiig  enouch  to  wari'ant  the  jury  in  drawing 
such  a  conclusion.  Where  a  man  is  absent  a  lone  time 
front  tJie  couniry,  after  goin.a;  from  it  with  ;in  inti-titinn 
of  I'eturning,  as  if  l:e  gc)  to  sea  and  is  not  l>earil  of  in  the 
course  of  six  or  se^en  years' — it  is  usual  in  such  ca«es  to 
take  jirobale  of  his  will,  giant  letters  of  aduiini-^'ration 
upon  bis  estaie,  &c.  He  may  he  dead,  and  yei  in  such 
cases  it  may  be  uiterly  iin|)ossib!i'  to  addure  any  diicct 
proof  of  his  death,  as  snjipose  the  whole  crew  to  he  sliip- 
^wreckcd  and  dro\vued  in  the  ocean.  In  the  pi'esent  case, 
the  owner  has  been  absent  upwards  ol'  thirty  }eais, 
and  no  p<-rs()ii  claiming  to  he  heir  has  appeared  in  all 
that,  time — ibis  also  is  presiimpli\e  evidence  sufficiently 
strong  u|)on  which  to  infer  Ihe  fact  that  llni'e  arc  no  heirs. 
It  is  proper  here  to  I'eniiirk,  that  he  w  as  absent  nine  years 
or  theieahout,  from  tliis  country,  before  the  coinmence- 
inent  of  ihe  war;  and  if  a  space  of  six  or  se\en  years 
uill  laise  these  presumptions,  then  prior  to  the  year 
1776,  when  the  declai'iUioii  of  independence  took  place, 
he  was  dead  wiliiont  heirs,  and  the  land  had  o«cbeaied  to 
Loid  Granville,  all  who«e  |iroprietory  rights  came  to  this 
State  by  the  State  Constitution.  In  this  view  of  the  case 
it  is  apparent,  that  the  State  was  entitled  to  ih(  land  in 
question  immediately  upon  the  formation  of  the  State 
Constitution,  not  as  vacant  lands,  but  as  lands  once  ap- 
propriated, and  of  coufMe  never  since  subject  to  the  laws 
and  regulations  respecting  unappropriated  land  ;  and 
though  Ihf  State  may  liave  granteit  these  laii(l-<  in  the 
year  1780,  to  the  Defendants,  yet  that  was  a  grant  in 
whith  the  State  was  deceived  ;  or  more  |iro|)eily  speak- 
ing, H  grant  issued  by  the  officers  of  government,  wbirh 
they  were  not  em|ioweie<)  by  any  1  w  to  issue.  The  offi- 
cers are  but  the  servants  of  the  public,  appointed  for  spe- 
cial ends,  wliose  acts  are  only  binding  when  within  the 
limits  presrrilted  to  them  by  law — ibc  grant  is  therefore 
void.  It  will  be  lontfhd.il  that  the  Defendant  has  been 
Id  possession  ever  since  the  year  1780,  a  space  of  more 


484  Haywood's  beports. 

Sep.  179S.  than  seven  years,  and  (his  must  be  admitted— bnt 
*"^"^''^-'  dots  it  not  Tollow  from  flieiice  that  the  jvs  pnssessionis 
whirli  the  Stale  liad,  was  baiTi-d  ?  JVullum  tcmpus  occnr- 
ritpopvlo,  liasl)rrn  a  good  meiieral  iiilr,  without  cxroiition 
(375)  till  the  art  ol"  1791.  c.  15.  From  1780  tlie..,  to  tin-  time 
of  grant  to  the  University  in  1789.  this  art  hnd  nr>t  run  ; 
and  since  1789,  when  the  titli-  of  ihr  University  accrued, 
until  tlie  coniiii<-ncen)ent  I'f  this  action,  seven  yeais  have 
not  elapsed.  So  tliat  there  is  iro  bar,  and  as  the  State 
grant  of  1780,  is  void,  there  is  nothing  to  iiinder  the 
Plaintiff's  recovery. 

It  was  argued,  e  contra,  that  the  Slate  grant  of  1780, 
was  good,  and  h^d  been  so  decided  in  a  great  nninher  of 
cases,  though  gi anted  foi  lands  not  strictly  v-^cant  with- 
in the  ineiining  r.f  the  entry  laws  ;  for  the  Stale  hanni; 
once  granted,  shall  not  he  [icriiiitted  iir  ejectment  to  say, 
Mor  shall  any  one  claiming  under  the  State  be  permitted 
to  say,  tlie  grant  issued  erioneonsly,  or  fraudulently  or 
surreptitiously,  and  is  therefore  void. 

Judge  Haywood  (Whliams  absent) — I  am  of  opin- 
■  ion  lor  the  University  as  to  all  the  points  agitated  at  the 
bar,  and  for  the  reasons  stated  in  the  arijiimenf  of  the 
Plaintiff's  counsel.  As  to  the  grant  ol  1780,  there  have 
been  many  decisions  that  such  grants  shall  be  good  until 
avoided  ill  a  Cnmt  of  Equity.  I  atp  of  opinion  for  my 
own  part,  that  the  grant  is  ahsoliilely  void  ab  initio,  and 
thai  its  invalidity  may  be  sho\Mi  upon  atrial  in  eject- 
ment. If  was  issued  bv  the  ()flicer>;  of  the  State,  with- 
out any  authority  for  so  doing  ;  and  is  no  more  binding 
upon  tiie  State  tlian  if  issued  h^  any  other  person  i>r  per- 
sons no'  calieil  Governor  and  Secretary — but  let  this 
poi'il  undergo  further  considri'ation  and  a  decision  that 
may  settle  tlie  law— I  will  not  oppose  ^y  opinion  to  that 
of  adjudged  cases. 

The  Jury  found  for  the  University,  subject  to  the  opin- 
ion of  till-  court  upon  the  question,  whether  the  grant  of 
1780,  under  the  ( ircumstances  above  stated,  was  a  valid 
dee(|  or  not. 

NoTF. — Upiin  thf-  In;  1  of  iliis  muse,  it  was  ol<jecteil  lli»t  the  action 
wa«  not  rri'lntainabli  \\  \\i-  Univrisity,  fur  two  luasons  :  First,  be- 
catisr  lh<  Plainlifl'  i.i  'In  F.jvctment  musl  have  tlie  rigl.l  of  poK'^ession 
or  ripht  of  t:n'i\,  «licli  «  'le'int-  iliin),',  and  lie  who  claim!- by  e»- 
chei'  has  not  \[\v  juiiitlrtndi.  'I'hc  Itteping  uf  possession  by  the  De- 
fendant, is  a  deforcement,  3  £1.  Com,  173,  and  is  not  to  be  overturned 


IIAYWOOU'S    UEPOU-tS.. 


432 


by  the  mere  entry  of  another,  but  only  by  the  demandant's  shewing  a  Sep.  1796. 
hetler  right  in  a  couise  of  laiv.     3  Bl.  Cum.  179,  and  i  i  •*nch  c;»se  he  t^#'-v'-'<fc/ 
shnll  have  a  wi-t  of  escheat.     3  Bl.  Cum.  179      2d,  the  University  be- 
ing a  corporation,   can  make  nii  lease  to  try  the  title,  but  under  their 
corporate  seal,  by  deed  duly  executed,  ;    and   here,  tliere  is  no  such 
lease. 

Hatwomi)  ,I,  (Winnxs  absent)— The  s.ime  objections  were  made 
a  few  t'vms  iiffo  at  Newbtrr.,  in  a  c:inse  tried  thete.  The  objections 
us  I  undti'stoud,  were  made  by  .Mr.  Vf'uoil,  and  the  court  doubted,  and 
took  nme  till  the  next  term,  and  then  overruled  iheni  :  and  I  concur 
with  them  in  the  propriety  of  doiMg  so.  The  lord  by  escheat,  accord- 
ing to  cireuntistances,  might  sonielinies  enter,  and  sometimes  was 
compelled  to  bring  his  writ  of  escheat  :  he  w  is  not  always  driven  to  a  CgTfiA 
writ  of  escheat,  as  in.iy  be  seen  in  2  i</.  Com  245.  When  the  posses-  *■ 
sion  was  vacant,  he  mii;htentei  ;  Init.when  the  deceased  had  leased 
for  life  or  otherwise,  or  conveyed  in  fee  tail,  and  the  reversion  only 

escheated,  then  he  cnuld  not  enter,  fir  the  right  of  possession  was  in  

another,  i'Ut  must  bring  his  writ  of  escheat.  Tliis  observation  recon- 
ciles all  the  books,  and  seems  to  me  to  be  the  true  doctrine  ,  and  then 
there  is  no  groimd  for  the  otjection,  as  this  case  is  circumstanced. — 
Video  Burr.  1301,  1303.  As  to  the  second  olijectnm,  the  general 
rule  of  law  is,  that  every  lease  by  a  corporation  must  be  undjr  seal, 
and  must  be  set  forth  to  he  so  ;  but  then  when  a  corporation  brings 
an  Ejectment  in  its  corporate  capacity,  and  its  Icssoe  sets  lorth  a  de- 
mise, an  ouster,  &c.  we  will  presume  that  lease  to  have  been  legally 
made,  :ind  no  proof  of  it  is  necessary  any  more  than  Iji  common  cases  ; 
and  tliat  presumption  extends  to  its  being  done  by  deed  under  seal, 
anil  therefore  good— sothat  that  objection  failsalso.  Viilel  L.Itay.l56, 
Paririilffe  v.  Bait.  Cartfi.  390.  Es/i.  Fa-m  Rep.  199,  Farley,  on  (he- 
demise  of  the  Maynr  &c.  of  Cantertntry  v.    JVoO'J. 

NoTK. — 0|)on  the  point  of  the  grant  see  Reynolds  v.  Flinn,  and  the 
note  therLto,  ante  106.  The  cases  cited  to  shiw  that  it  is  unneces- 
sary for  a  copoiation  to  make  a  deed  under  the  seal  of  the  corporation 
to  try  title  in  the  action  of  ejectment,  are  supported  by  the  modern 
practice.     Jidams  on  Ejectment,  194. 

if  a  course  and  distance  be  called  for  in  a  deed,  terminating  at  a  natu- 
ral boundaiy,  there  the  line  mast  terminate,  whether  it  eaceed  or 
fall  short  of  the  •listanre  mentioned  in  the  deed  If  a  course  and 
distaneebe  called  for,  and  there  is  no  natural  boundaiy,  nor  marked 
(line,  the  course  and  distance  will  prevail ;  but  if  there  be  a  marked 
line  and  corner  variant  from  t)ie  course  and  distance,  the  marked 
line  and  corner  must  be  pursued. 

Tills  actiitn  was  lii'oii.s;lit  (o  ascertain  tlit^  bi)timlaiy  of 
llie  Plaiiiliir'.s  land.  The  f|iie,sti()ii  ilt-peudoil  upon  the 
ti'iic  tcriniiiatioii  of  tiie  last  lino  hut  one  in  the  jtatent,  that 
being  liie  point  from  wiilch  tliii  last  line  was  drawn  to  the 
bei^inning;.  The.  last  lint-  but  one  from  the  inHple,  south 
60,  cast  pole,  to  a  hickory  standint;  on  the  |>()int  of 

of  the  island.  The  last  litn'  ran  a  certain  course  to  the 
beginning.     If  the  last  line  but  one  terminated  where  it 


434  IIAYWOOU'S    REPORTS. 

Sep.  1796.  intersects  the  bank  ot  the  island,  the  course  from  thence 
^■^"^'"^^  to  the  begiimina;  was  e,xa('tly  ihc  roiirse  of  the  last  line 
as  de!sci'ib>'<l  in  liic  patent  ;  but  ilicn  tlic  distance  ol'  tlic 
last  line  but  our,  wo;;!;!  not  be  completed  ;  there  unuld 
be  a  consiili'i  able  defirieury  ;  neitlicr  is  tliere  any  niai'k- 
ed  liickoiy  at  that  place.  If  the  last  line  but  one  be  ex- 
tended to  the  r unplctioii  of  tlie  distance  mentiiined  in  the 
patent,  it  will  ruti  considerably  into  the  island,  whicli  at 
the  time  of  tlw  sui  vey  for  the  Plaintiff  was  appfopriatcd 
land  J  but  the  distance  mentioned  in  th-  patent,  would 
not  extend  to  the  termination  of  ilie  niaiked  line  found  in 
the  island,  and  the  last  line  drawn  fi'om  the  point  \viiere 
thai  distance  was  coni|deted  to  the  bet^iniiing,  would  nave 
intersected  the  small  island  in  the  river  which  the  Plain- 
tiff claimed  ;  but  if  from  the  termifiatioii  of  the  marked 
line,  then  that  island  is  included  wiiliin  the  Plaintiff's 
boundaries,  and  the  last  line  in  its  course  would  touch  the 
place  where  the  hickory,  marked  as  the  cirner  at  the 
point  of  Ihe  island,  was  said  formerly  to  stand. 

Per  curiam  (Haywoou  picseni") — Tlie  beginning  of  the 
last  line  is  not  disputed,  the  only  question  is  where  it  ter- 
minates, and  where  was  the  corner  made  for  it.  It  is 
(377)  proven  to  have  been  made  at  tin'  point  of  the  island,  very 
considerably  out  of  the  course  of  this  line,  and  ni-arer  to 
the  beginning  than  any  psirt  nf  this  line  i^.  We  must  in 
the  first  place,  attend  to  the  rules  istablished  by  Judicial 
determinations  for  the  settlement  of  bound.iry  case-',  which 
are,  tliat  if  a  coui-se  aod  distanci^  be  call 'd  for,  tciinioa- 
ling  at  a  natural  boundary,  as  a  svvam|i,  island,  moun- 
tain or  the  like,  there  the  line  must  terminate,  wlietlier 
it  exceed  or  fall  short  of  the  distance  <  xpnssed  in  the  pa- 
tent. If  a  course  and  ilistance  be  calh'd  for,  and  tln-re  is 
no  marked  line  nor  natural  boundary,  that  course  and 
distance  niusi  be  pursued,  and  the  line  must  terminate 
where  that  distance  in  the  course  called  for-,  is  comple- 
ted :  but  ifaci)urse  and  distance  be  called  foi,  and  tln-re 
be  a  marked  line  anil  corner,  variant  Iroin  ihat  course 
'  wliicli  is  proV'ii  to  be  the  line  nutde  by  ihi'  surveyor  as  a 

boniidaiy.  thm  that  marked  line  shall  be  pursued.  To 
ex.nmiue  th''  present  case  by  ihese  rules — this  nnu  ked  line 
will  intt^rsect  the  bank  id  the  island  befoe  the  distance 
be  coinpleieil,  and  a  line  diawn  from  ihence  will  exact- 
ly agree  with  the  course  of  the  last  line  mentioned  in  Ihe 


m 


ilAYWOOb's    UEl'ORTS. 


•135 


patent,  which  will  not  he  true,  with  respect  to  any  line  Sep. ir96. 
tirftwii  fmm  eith'T  of  the  other  two  tiMininiiiiitns  ;  yet --^■v-^.^ 
th.if  line  diKat^iei-M  willi  llic  (Icscriptioii  in  thise  puiicii- 
lars — It  is  nor  at  the  pnitit  ol'  the  ishiml — there  is  no  hick- 
ory— :iii(i  the  distance  is  not  ((Mnpleted.  If  we  |iiir-iiie 
the  nimkcd  tine  into  the  ishind,  and  Mto|)  at  I.'ie  conipie- 
tion  of  ilic  distance  menlioned  -in  the  paiciit,  lliat  point 
disagrees  willi  Ihe  descii|)ti(>n  in  these  |K»!-licnliii--i — M  is 
not  at  the  lianli  nf  the  island,  nor  at  any  hickocy,  nor  oD 
the  piMnt  of  Ihe  island  ;  neither  will  the  last  line  drawn 
from  Ihfnce  he  in  the  conrse  nicntinned  in  the  patent. — 
If  we  go  111  tlie  end  (vf  the  inai-kcd  line,  we  enter  npnn  ap- 
I»rnprialed  land,  and  a  line 'drawn  from  riicnce  to  the  be- 
giiMiing  will  include  many  acres  of  ihi-i  appropriated 
land  :  hut  if  vacant  hunl  adjoin  land  a|)!H'o])riatiMl,  and 
the  patentee  hy  misiake  inclnde  part  id"  the  appropriated 
land,  he  shall  hold  all  the  land  u  ithin  his  hoiindaries  that 
was  not  pre\ionslv  apj)ropriaied.  Moieo\ep,  iliat  point 
acjrees  N\iih  ih"  descri])tinn  of  the  patent  in  more  pi'iticu- 
lars  than  any  oi  the  other  points  will — the  distance  of  the 
line  leadint^  to  that  point  exceeds  the  leni;;tii  mentioned  in 
Ihe  jtateat  hnt  A  little  ;  a  line  drawu  from  thence  to  the 
heqinning  will  touch  the  pi  tee  where  t'je  Itickory  stood  ; 
that  place  »ili  he  on  the  l)ank  of  the  island,  and  also  at 
llio  point  of  the  isl.ind.  'I'liconly  circtiujstanre  in  whicli 
it  ili;a^rees  with  the  patent  is.  th.tt  a  line  cotilinneil  frotn 
thence  to  the  hcginning',  i\ill  not  he  in  tiie  conrse  called 
for.  By  llirowing  a\Nay  the  appropriated  land  in  the  is- 
land, ("ontaiiied  within  the  an^le  formed  hy  the  intersec- 
tion of  the  two  last  lines,  or  hy  drawins;  a  liin' along  M»o 
(dgeofthe  island  from  its  point  of  int  rsection  hv  the 
last  line  hut  one,  to  the  point  of  tlie  island  w  here  liie  hi(  k- 
ory  stood,  we  avoid  what  prohahly  the  surveyor  intend- 
ed to  avoid,  an  interference  wiihthi'  Mppro|Mi.ited  lanil, 
and  allow  to  the  patentie  all,  ami  no  more  'han  he  was 
intended  to  have.  Should  we  run  from  tin-  b'gionin^r  of 
the  last  line  hut  one,  directly  to  the  hickory  at  the  point 
id"  the  island,  we  leave  the  marked  line,  proven  to  be 
marked  as  a  honndary,  and  loa\e  out  a  p.r;  of  the  land 
intended  for  (he  patentee.  The  coni-t  therefore  is  of  opi- 
nion, that  the  mm  ked  line  slimild  he  pursued  till  it  strikes 
the  island,  and  thai  from  thence  lo  the  hickory,  along  tlie 
edge  of  the  island,    -ihoiild  be  deemed  another  honudarv. 


(378) 


'136  Haywood's  uepouts. 

Sep.  1796,  an(]  tiie  last  line  be  drawn  (Voin  tln'iirc  to  (lie  bc};iiining. 
'''*^^''^'*^  Tlie  jiirv  fiiiiiul  acroMlinsly  for  the  FlMiiitifT. 

Note. — Thai  the  mnvked  line  reallv  ma'le  as  the  boundary,  is  I"  be 
folluwei'  rather  ihaii  Ihf  coursi-  mentu'iied  in  llic  patt;nt,  where  Ihev 
happen  to  disiigri  >•,  is  :i  ut-  e>tablish'd  l>)'  several  cases  lurmcil  upon 
^he  C'is  •,{  Person  \  Rouniitree  \  which  is  a  leadin)^  case,  and  was  thus 
^^Jimindlree  n  t  rod  i  'i^ic'  •'  ht-.iA,  l.vrnpf  ir.  XJranville  C  lunty,  on 
Shoccci  cr.  ck,  and  ran  th'-  said  ir  •«  nut  in  following  mani^er :  lie- 
ginning  ai  a  u-e  i>n  ihebmk  of  Shocc  creek,  running  south 
])oU  s,in  a  curni  r,  ihence  i  a^i  polfi,  to  i  corner, tlien'^e  north 

polfs,  tn  .  corner  on  (hi-  creek,  thenci  up  the  creek  to  thi-  bepinning. 
ijy  a  iinHhifcc,  t-ilh'  r  mi  th'  Sunevor  or  in  the  Secretary  who  fillediip 
tile  grant,  lu  courses  were  reversed:  Beginning  at  the  cre«  k  at  a 
tree,  running  norih  pules,  to  a  corner,  thonce  easl,  &c,  placing 

the  Ui.ds  on  ihe  opposite  siile  of  Ih.  creek  from  that  on  which  it  was 
reallv  urveyed,  ^othat  liiegr.<ntdidiuit  covprany  of  the  land  surveyed. 
ffou>irf/ree  seitled  on  the  l.tnd  ■airvry-d,  which  was  ifterwards  entered 
by  Person,  who  obiMinid  :<  deed  from  Earl  Granville,  and  brought  an 
cjcc'inent  against  iJoM»(//rce  f  r  Ihc  prniises.  On  the  trial  Jtctund- 
tree  |<rOv.  li  the  lin  .>■  oi  iln-  siirvrj',  ami  his  having  been  in  po^sc-sion 
for  soiiii.  trnu,  clainrting  Ihe  same  under  his  grant.  This  c.ise,  after 
beinj;'  ■  m  ral  litn's  argui-tl  by  the  counsel  on  both  sides,  was  at  lenglli 
finally  ditvrmiiied  by  lUe  unanimous 0|>ini'>ii  of  ihc  court,  whodecided 
that  I  lie  mistake  nf  tiie  Surveyor  or  Secretary  who  filled  up  the  grant, 
shouM  n.i  pr<  judicithi-  Defendant  ;  and  titai  the  Defendant  was  well 
entitled  to  tilt  laiid^  inunded  to  be  granted  a. id  which  had  been  sur- 
veyen.      \nd  llnre  was  judgment  fir  the  Defendant. 

Note — Vitle  Bradford  \.  Hill,  and  Ihe  note  th<  reto,  ante  22. 

Brown,  Messrs.  CiiiiipbclJ  &  Co.  v.  the  Admin.stfatois 
of  Craig  and  Clearj. 

When  a  person  receives  evidences  of  debt  from  his  debtor  for  the 
purpose  of  collecting  the  money,  an<!  appli  ing  it  to  the  credit  of  his 
debtor,  he  is  bound  to  the  same  decree  of  diligence,  in  a;t.-mpting 
to  prncMie  pavment,  anil  in  giving  notice  of  iK»n-p.<\  mei.i,  though 
sucli  evidrnces  ofiiebi  he  not  mg. liable,  as  if  they  were  n  gi.tia- 
ble,  anil  had  been  en  iorsed.  Per  Williams,  judge.  KnX  per  Hk\- 
WOOD,  Judge.  The  creditor  uould  not  be  liable  tor  any  loss  in  such 
case,  unless  the  debtor  Could  show  that  the  loss  h!.ppcntd  by  his, 
Ihe  creditor's  neghgencc.  ., 

Case.  T'or  gDods,  wufes  and  iiieiThandizes  sold  and 
delivered.  U|>i)ii  tin*  li-ial,  ilie  I'lainlitls  jwovcd  (lii-ir 
.  Case  sufficient ly.  On  llic  purt  of  ilie  Drfriiilaiits  i'  was 
v"  yj  proven,  tliat  tlie)  dflucicd  !•.  Brown  some  bonds  and  ar- 
COiMits  title  to  them,  the  Delimliinis,  frmn  jieisons  rcsi- 
dciii  ill  Soiith-Carnliiiii,  where  Brown  lixcil  ;  rinil  he  gave 
(hem  ,1  Writing,  piirpuriiiii;  thii:  t-ifse  delits  v\lirn  rollect- 
<>d,  siioiiid  be  pa.ssed  to  tiicir  credit,  boine  of  ilie  ac- 
(ouiits  were  returned,  but  oni«  account  ami  Home  I'Ttlir 


Haywood's  heports.  437 

boiitis  bad  been  suod  u|inii  in  S'liitli-Cmolina,  and  jiidi^- 5ep.  1796. 
merits  obtained,  and  nulla  bona  lotui-pied  to  tin'  exocii- ^■^^'^^^-' 
tioiis.  Oitf  cif  lliein  \vm\  been  sued  u|)()ii,  atid  t'lC  record 
])r(ivc(l  ii  i<i  bavebeen  |ir<iceo(led  upon  for  some  time,  and 
U|i  to  'be  'ime  wben  hy  another  rcc  .rd  it  was  jn'oven, 
tbat  111!'  DrCtMidant  bad  lieen  atiaint('<l  oi'n  rapital  oflTeiice 
and  biui!;til  ;  but  none  ut' these  suits  had  hern  ii.stisnted 
till  after  'be  expiration  of  a  year-  (roin  tin'  ierei|ii  of  tlie 
papers  Itv  Brown.  None  of  these  bonds  oi' accounts  were 
♦indorsed. 

Jnds;-  Williams  (after  ari^nment  by  Huffy  for  liic 
PlainiifTs,  and  Henderson  for  the  Defendan.s) — VViiere  a 
creditDi-  receives  |i;tp'rs  t!iat  arc  evidences  of  debts  due 
to  tbf  debtor,  to  Ije  passed  to  th' credit  of  the  ilebior, 
when  tlie  money  <lue  u|)oi>  ihem  -liaii  hi'  received,  tlic  cre- 
ditoi-  is  bound  to  use  all  ibe  same  diliajence  to  procure 
payment,  and  in  i^ivinu;  notice  to  his  debtoi- Of  'nn-pay- 
inent,  as  if  the  papers  received  were  arniallj  nej^otiable 
ill  their  nature,  and  endorsed.  This  is  prove!  by  ilie 
case  of  Chamberlyn  v.  Velarive,  cited  at  tlie  bar  from  2d 
Wils.  353.  And  as.  it  his  lieen  (iptermified  in  our-  courts, 
tbat  a  year  shall  be  the  longest  time  alloued  for  the  giv- 
ing of  this  notice,  in  a  case  decided  at  Mortjanton,  tliere 
is  great  reason  why  a  person  who  I'eceives  instriinient-, 
not  negotiable,  should  be  hound  to  give  notLce  in  leason- 
able  time,  and  I'efurn  the  papers  ;  since  until  the  notice 
given,  and  the  papers  returned,  the  person  who  nas^ed 
them  has  it  not  in  his  power  to  institute  suits  for  the  re- 
covery of  the  monies  due  upon  them;  and  foe  want  of 
such  notice  and  return  of  papers,  lie  may  lose  bis  debt 
entirely. 

Judge  Haywood^ — I  do  not  like  to  give  my  opinion  in 
this  cause,  having  been  concerned  in  it  whilst  attlie  bar; 
but  I  cannot  agree  with  Judge  Williams  resj)ecting  Ibe 
law  of  this  case.  The  rules  respecting  negotiable  instru- 
ments, are  the  creatures  of  commerce.  They  depend  en- 
tirely on  the  custom  of  merchants,  which  has  applied 
them  for  the  conxenience  of  commerce  to  certain  commer- 
cial instruments  only.  None  but  such  instruments  as  are 
the  subject  of  this  custom  are  liable  to  these  rules.  With 
respect  to  bills  of  exchange  oi'  the  like,  the  lioldei  of  the  ^ 

paper  must  give  notice  in  reasonable  time  of  non-pay-    i-^°^J 
ment  to  the  indorser  ;  oi-  he  must  prove  on  the  tiial,  tbat 
the  indorse!"  or  drawer  bad  suffered  no  loss  for   want  td 


438  HAYWOon's  reports. 

Sep.  iroe  notirc  ;  btcausc  when  a  man  takes  a  iicffotiablc  paper 
*'"^"^''^^-'  by  inclorscinpnt.  tin'  custom  raises  a  fonirait  mi  iii'»  part, 
to  i;i\e  leasoiiablc  notice  of  imii-paymeiil  ;  but  if  the  pa- 
ppi'  be  takes  is  not  tiet^otinble,  tbe  custonr)  beiii,^  noi  iitade 
to  {govern  surli  trnnsartiotis.  raises  no  eonti'aci  at  all 
conrrrnins  it.  and  tbere  it  is  rt-ffulated  by  the  priiiriples 
of  romnion  jtistife  onlv.  Tht-  piipers  may  be  returned 
to  the  piii^ser  of  them  al  any  time.  The  ri'rei%irit!;  of 
them  by  the  r  icditor,  is  not  any  ilischiirge  of  the.  debtor. 
-So/A-.  286.  But  if  he  has  been  so  iieglisent  after  receiv- 
iiitr  tin  pjipers,  as  that  lheiel)y  a  loss  hits  happened, 
wliich  by  usiiiff  common  and  m-ilinary  dilie;ence  he  might 
have  prevented,  and  wliich  iiitisi  fall  either  ujion  himself 
or  the  ])asser  of  the  paper,  llien  the  passer  of  the  paper 
by  pioxin.a;  that  riirnmstance,  shall  throw  the  loss  upon 
the  rereivei-  of  thi-m — ;juslire  requiring  that  he  by  whose 
negligence  the  loss  has  ha;<peiied,  sliall  hear  it  ;  but  in 
this  rase  liie  Defendants  have  iim  pro\eij  that  the  debtors 
in  these  pH|)Pfs,  were  solvent  at  (he  (inii'  of  the  reception 
of  Ihem,  and  for  some  time  after,  and  areiir)w  insolvent ; 
noi-  any  othci-  riiTumstance  to  exempt  llienj  from  taking 
btu  k  lliepajjcrs.  Tliey  haxe  nol  proven  any  loss^n  ron- 
srqurnce  ol  any  neglect  in  the  holder,  w ithoiit  which,  or 
the  proof  of  some  etpiivalent  circumstance,  I  am  ot 
opinion  ihey  cannot  com|)eI  Bro7vn  \i>  lake  them  in  pay- 
ment. {Vide  Sttlk.  \5l.  6  Mr  81.)  Tin- jury  found  for 
the  Plainiitfs,  anil  Assessed  damages  to  nine  hundred 
pounds;  »\a\  Henderson,  Ihv  \hv  Defendants,  moved  for 
a  new  trial,  on  account  of  the  misdii'ection  of  Judge 
Haywood,  and  had  a  rule  to  shew  cause. 

Au4i  u|ion  the  argument  for  the  new  (rial  he  cited  1 
Term  Rep.  40.'i.  ri4.  4  Term  Hep.  713,  where  it  is  laid 
down  that  in  case  of  bills  of  exi'hange  the  payee  must 
give  notice  of  non-acceptance  to  the  drawei'  in  reasona- 
ble time,  or  must  proxe  that  no  loss  could  happen  to  the 
drawer  for  want  ol  notice,  by  proving  there  wei'e  no  ef- 
fects of  his  in  the  hands  of  the  di-aw'ee  These  aulhoi-i- 
ties  wire  cited  to  overiuiii  that  part  of  the  cliarge  to  the 
jury,  which  slated,  that  the  Defendants  weie  bound  to 
take  hack  the  papers,  unless  he  could  prove  a  loss  lohavu 
liap|ieiie(i  by  the  negligence  of /irou'M,  Hie  lioldei';  and  were 
jni<  tided  toestablisli  the  reverse  of  ihat  iiropo-ition,  name- 
ly, 'liat  Drown  must  keep  the  papers  as  |iayineiif,  unless h© 
could  prove  the  insolvency  of  the  debtors  at  the  lime  of 


HAYWOOU'S    REPORTS.  1*^9 

tluir  rccejilion,  nc  licfoie  lie  culd  possibly  recovrr  of^'^';^'^ 

thmia;li  the  p  iprrs  in  questioi)  wiii'  iiol  ■  ndoi  si-d  hop  w-  {■'■^'■J 
jyotiabli',  }Cl  liiiviiiju;  been  rercived  liy  Brown  lor  111"  piir- 
jxisc  ol'  1  ollrftiii.e;  ilic  uioriirs  diii  iipao  ilii'ni.  vvhjc!.  MM'e 
wlien  folli'clfd  to  be  nj)|dird  tn  his  own  u^c,  hihI  CiiMJied 
to  the  Ufreiidaiits,  th;ii  they  woe  io  all  respects  si.hj.ct 
lo  the  same  rules  of  law  as  if  they  actually  were  hills  nf 
(•X('b:iiia;e  and  iiegoiiable  by  endorsenient.  Aitd  >if  this 
opinion  was  Jodjje  Williams  dearly  ;  and  lie  wjis  for 
};rHMiiii£;  a  new  trial.  Jiidi^e  Haywood  conliMiu'd  to  bo 
still  of  his  former  opinioo,  but  decliiieil  oiiposiny;  the  new 
tri:il,  liaviiie;  been  foriiiei-ly  conrerned  as  counsel  fur  the 
riiiintiflfa.  A  new  tiiiil  vvan  ;;riinled  ac(Hr<(iiiu;l\  ;  and 
at  the  next  term,  in  March,  i797,  Ihe  l*laintift"'s  wimess 
beiii,!!  not  in  court  when  Ihe  cause  was  called,  he  suftereij 
A  nonsuit. 

N'oTii-. —  Vide  tli«  next  case  '.tf  .Hsfon  v.  Taylor. 


HILLSBOROUGH,  OCrOHER  TERM,  1790. 
Alston  T.  'ravlor. 

NViLHAMs,  Judjje,  inclined  to  clumire  llie  opinidn  expressed  in  t!ie 
preceding  c:\-.e  of  Brown,  Canipbcil.  ii  Vo.  v.  Jlilmr's  of  Crwg  and 
Cleary,  a  d  ti>  hold  th:it  iinn.  jj..ii:d)K-  p;ipcr,  th.n!j;M  <;ndnrs,  d,  does 
not  bind  lo  tile  same  (lilitjence  ;i.s  ne;;()(i.ii>li:'  instniments.  Honds 
made'in  Viij,'ini!.  and  assiifniihle  hy  llie  hnvs  <>(' tint  Stale,  but  nut 
assiifiKhle  by  our  laws,  must  be  sii'ijccl  to  our  laws  when  tlie  con- 
tract uf  assignment  is  made  in  this  Slai".  V  d.positi.  n  expu'Ssid 
to  leave  been  taken  at  iIip  lions'  nf  Ulaiininq:.  '-t  Halifax  (Va.)  cmirt- 
hiinse,  when  ihe  notice  was  to  take  il  at  llulilax  onit  hou-.-,  was 
iej>-cted,  althiiUKb  il  was  piove.l  iliat  iljanning'i  lionsi.'  stood  un'y 
about  eight>  yards  from  llie  ci^urtliDiise.  Tii.  nccipt  of  an  Att'ir- 
iiey  now  deceased,  is  admissible  ti>  piovethe  time  when  bon  ]~>  were 
put  into  bis  hands  for  collection.  A  record  '  f  a  couit,  ceitiR.  d  pro- 
perly, 1  xi-ept  a  nantol  the  seal  of  the  court,  is  not  admissible,  iir.- 
less  il  be  certified  lliat  tUe  court  bad  no  seal. 

The  declaration  stated  a  count  fur  money  had  and  re- 
ceived to  the  use  of  t.iie  I'hiinliff;  another  for  money  laid 
out  and  expended  for  the  ii.se  nf  the  Oefeodant  ;  another 
for  j^iiods.  Wares  and  iMerchaiidize  sold  and  delivered  ; 
and  .(iiothcr  9pe(  iai  count  ;is  follows,  to  wit:  And  where- 
as alsii.  the  s.iid  Edmund  (Tfyltr)  wa^  indebinl  to  ono 
John   [Tnidentiw.   in  tin- sniii  of  sivieen  liiindred  and  (ifty 


440 

^^"  HWWOOU  S  KEPDUTS. 

^^1.;^^,^^  poiinils,  file  said  Kdmund.  tin-  day  and  year  ai'uresaid,  in 
till-  roiiiily  Hiid  disitji  t  Hf'rcs.iid.  did  imdrrtaki-  ;iiid  pro- 
inisi'  'hc/T^nid  Lemuel  C^lstouJ  tli;.t  if  ilio  suiil  Lemuel 
\v(»iil<i  |>;i>  and  Siilisfy  tin-  said  Jalui,  tlic  sum  ol'  mmiey 
last  iil'oresaiil,  so  tli;it  'ic  ilic  v;ii(l  Kdmtnul  slioiild  l>c.  ex- 
onerated and  discliara:?''  I'l'-md  tri>iii  (hr  same  dt  ht-;.  by 
liirn  so  owinir  to  the  said  Juhri,  ilr.it  he  ilic  s:ii<l  Fjlmuvd, 
in  ronsidcration  tliereof,  would  wril  and  truly  lepay  liiin 
the  said  Lemuel,  the  Slims  of  inoiK'v  so  by  him  to  b-  pai(l 
to  till-  Siiid  JdIih,  and  would  I'of  tliat  i»i(ii>iisi-.  ('(npowej" 
»nd  anihorisi'  liiin  liie  said  Lemuel,  to  ask,  flemand  rfnil 
sue  f'>r  at  l;iw,  in  the  nami'^of  him  lh<'  sail!  Edmund.  <u»- 
ilry  di'hts  dm-  and  owina:  to  him  Edmund  b>  oiu-  John. 
Lewis,  jiin.  at  the  cos's  of  iiim  Edmund  ;  atid  the  money 
when  olitaiiu'd  hy  him  Lemuel,  to  he  appii.-*!  towaids  the 
re|(ayineni  and  HatisfaitioM  of  him  Lemuel — and  the  said 
Lemuel  avers,  that  hf  tiatii  paid  the  snid  Henderson  the 
stun  (dsixlet'ii  hundn-d  |)ouoils,  loi-  '.md  <<n  icronnt  of 
said  Edmund,  and  hatli  proeiirnl  him  Edmand  to  be  <lis- 
(^382)  charged  and  exonerated  from  the  same,  and  h  ilh  in  f^ct^ 
used  dne  dili:;enre.  to  ri-covef  the  ifi mies  due  and  owing 
hy  the  said  John  Lewis,  jun.  to  fhi-  said  Edmund  ;  and 
liath  for  tiiat  purpose  iironu;ht  suits  at  law,  and  ha'h  rx- 
pendi'd  in  the  necessary  snpjiort  thereof,  and  for  liis  ne- 
cessary expences  in  afd'udins  thereon,  and  in  endeavor- 
ing  to  probiire  paymeTit  as  aforesaid,  from  said  Lewis; 
the  sum  of  two  iiuiidreil  pounds ;  but  hath  no*  been 
able  to  obtain  any  paymeirt'ii  saiisfaction  fioin  said  Lcw- 
is:  all  of  which  tiie  said  /i'(//n«u(Z  afterwartls,  to  wit.  on 
X\w  twentieth  day  of  Oitober,  in  the  year  1792,  at  Gran- 
ville county  aforesaid,  had  notice  :  and  was  llien  and 
there,  to  7vit,  Ww.  day  and  place  last  afoie--aid,  requested 
hy  the  said  Lemuel,  to  |iay  ami  satisfy  Itim  tite  money 
paid  to  said  Henderson  by  him  Lemuel,  at  the  reipiest  of 
liirn  Edmund  as  aforesaid,  and  fur  the  costs  and  expences 
aforesaid  of  him  Lemuel,  lisid  out  and  ex|ieiided  as  afore- 
said, in  enilcavin'inq;  to  recover  and  collect  ttie  debts  duo 
to  said  Edmund,  hy  Jo/t/t  Lewis  as  aforesaid.  Neverthe- 
less, Ace  — To  tliis  (led  iration  tiie  Defendant  |)leaded  non 
assumpsit,  an<l  the  cause  now  came  on  to  he  trii-d. 

Tie  Plaintiff  pro<lined  'hree  several  bonds,  payable  iu 
Dec.  inbi-r,  1779.  1780.  1781,  by  Lewis  to  raylor ;  eaeli 
of  liuiii  i-ndcnsiil  with  an  tssignment  from  Taylor  to  M- 
stoit.  the  Flaiiitiff,  on  the  10th  of  December,  1782  ,-    and 


HAYWOOD'S    EEPOKTS. 


441 


lie  proved  on  liis  [);iil,  tlmt  lie  asivcii  to  (akc  (!icm,  "P*^"  ^^,^. 
coiiditiiiii  tliaf  if  In-  coiiM  imt  .a;('t  the  nioiuy  cif  Lewis,  lie 
slioiild  have  iHTiiiiise  lo  Twy/or  ;  iipoii  whicli  Taylor  a^^- 
sip;iip)l  them.  (If  prnvcd,  also,  tliat  within  t\\i>  months  or 
less,  rroiii  Ihe  d,»!e  oCthc  as.sijjinn:'n;.  lie  applied  '"  Lew- 
is, and  pi'ouiiieil  some  neijri>es  in  pai  t  discharge  of  the 
dehts  ;  and  that  on  ilie  8tli  of  Jamiaiv.  1784,  he  put  the 
boiid-i  into  ilie  hands  of  i  i  Attorney  in  V'ii  j^inia.  t>.  bring 
stiits  upon  ;  whieJi  wei'e  hionjjiit  arcnrdiuijly  the  27fh  of 
April.  1785.  'I'hiit  on  the  10th  of  Dr.  enihc  r,  1784.  he 
receiti'd  seventeen  thousand  wei^hf  of  iobaeco  ,is  n  fiii'-. 
ther  paunenf.  and  that  in  Api-'l,  179)  (the  Dflendaiit 
in  the  mean  time  having  died)  the  suits  were  eaJied  and 
dismissed.  That  on  fla-' I9th  of  Julv.  1790,  he  cuisctl 
writs  to  he  issued  as^ain.st  Ihc  excmtors  ;  and  ai  July 
term,  1791,  in  Caswell  County  Court,  he  obtained  judg- 
ment. Tlmt  previous  to  'hi-,  tiie  exepiilors  lvnt<i\X*tl  to 
South-Carolina,  anil  that  on  the  26ih  of  April,   1791,  he 

sued  them  np'oi   these  Jud_a;m'iits  in  SoiKh-Caiolin.i. 

That  ill  Ociober,  179J,  die  Jiidj;i!iiMits  were  leversed  in 
this  coni't  for  error  in  lin- proeeediu.^s  ;  and  that  in  No- 
vember follow  iiijj,  the  jury  were  iisipannelid  upon  his 
suits  in  S  >utli-Car"!ifia,  and  foiind  ag-aitis!  hiin  :  and  tliat  (S83) 
on  the  13ih  of  Oetober,  ]7d2,  he  gave  uoiice  of  tliese  pro- 
ceediti;;s  to  Ta]djr,  and  that  he.  intended  (o  resort  to  him. 
On  (he  part  t)f  the  Defendant  it  was  proven,  that  wlieii 
the  ronii-act  was  made,  it  was  insisted  on  by  Alslon,  tliat 
the  bom's  shouM  he  assi_!^!ied  by  Tiiijlor,  to  the  end  (hat 
if  lie  failed  to  }:;et  t!ic  nioacy  o^  Lewis,  he  mi.ijht  then  re- 
son  to  Tai/lor  ;  aoil  that  Ttn/Zor  upon  this  niatic  ihe  as- 
si.i^iinieni.  sayin_s;  the  riicuinstauces  of  Lewis  are  i:;ood, 
and  if  he  does  not  jiay  you,  conse  to  me,  and  ]  will  j^o 
w'UU  yon  and  see  you  paid.  That  not  long  afieru arils, 
within  two  moiijUjn,  .iilston  bought  some  negroes  (Voni 
Lnvis.  and  said'Hc  eould  have  had  more,  hut  the  price 
v\',;-  rathei'  too  high— he  thought  it  most  proper  to  wait 
till  some  futiiro  time,  when  he  niiglit  have  it  in  his  pow- 
er to  nr.ike  a  better  bargai.i  ;  and  said  lo  Taylor,  you 
are  rlear,  he  has  property  enough.  Et  was  further  pro- 
ven, "hat  the  bonds  inidorsed  were  made  in  Virginia,  and 
there  pajahlo. 

lyhyte  foe  the  Uefendanl — This  is  a  new  case.  I  have 
neve;  in  the  course  of  m^  |ira(;tice  or  reading  ni.-t  with 
one  so  I  in  nmstanred  in  ill  respects.  The  bonds  in  ques- 
!iun  were  given  in  Vifginia,  where  they  were  assignable 


U2 


IIAVWOOI)  S  KEl'Oins. 


Oct.  179G  [,y  t|,p  ac,  „f  22(1  Peo.  //.  c.  35,  s.  7,  passed  in  the  jeai- 
'^^~'''''*~'  1748.  The  (lifliciilty  arisi's  rioiii  tin-  as«i,;;-iiimMit  Imviiif^ 
taki'ii  plact'  ill  ilii-^  Sutli- — li:i<I  it  been  in  Virs^ini-a,  I 
thiiiii  tlu'ie  CduliI  li  :  c  liei'ii  im  (jiicstioii,  but  liial  (he 
same  Cdiitrart  wmiid  Iiavc  liceii  iiii|ilii'<l  frmii  tlie  assij^n- 
mciit,  as  is  iin|>Iii-ii  by  lawfrDin  llie  assi^iiineiit  of  all  iic- 
gotirtblo  {M|ii-rs,  naiuply,  llial  I  lie  assii^iiec  sUoiilii  a|i|iiy 
in  a  r('ii«.iniab!e  tiim-  fn- payment,  and  if  be  roultl  not  pro- 
cure payini-nt,  lliat  lie  slioiild  in  a  reasonable  time  {;ive 
notice  thereof  to  the  iiidofser.  and  also  tliat  he  intended 
'lo  resort  In  liiui.  These  parlies  intended  tn  vest  an  in- 
terest in  the  assi<;nei-  by  tlie  intlorseinent.  It  was  required 
forth'"  very  purpose  of  enahlin,t;  the  assitjnee  to  coiniueitce 
suiis  in  his  own  name,  and  to  make  tlie  iiidorser  liable 
upon  the  event  of  ihc  ind(n-see  not  beinsj  able  to  procure 
pavineiit  of  ihc  ohii.ijor.  This  evidently  was  the  ex- 
pressed intent  of  the  partie-i,  and  I  can  see  im  rule  of  law 
to  hinder  that  inteiii  fioin  takinj;  eflfect.  These  bomls 
were  in  their  original  crealion  ne.i^otirtble.  and  it  cannot  be 
iiisisied  they  lost  this  (jiiality  by  beinji;  hrou,i;ht  into  tlii^ 
State.  A  ciinii'art  of  any  kind  made  in  one  country,  is 
in  all  other  loimtries  to  be  considered  in  the  same  lislit, 
and  to  have  all  the  same  qualities  it  lia<l  in  the  country 
where  made.  Thus  a  debt  in  Vii'js^inia  oi'  the  Indies,  if 
sued  upon  in  our  courts,  will  tlraw  the  same  rate  of  in- 
terest as  it  would  haxe  done  in  the  courts  of  those  coun- 
tries. A  ilebt  contracted  in  France,  which  would  have 
been  void  by  the  Eniijlish  law  if contraitrd  in  Bn^lauii, 
shall  he  carried  into  effect  in  the  En.a;lis|i  courts,  1  Bl. 
Rep.  258.  There  can  be  no  i^ood  reason  for  snyini;;,  that 
an  insirumciit  in-goiiable  whe/e  made,  slmuld  lose  that 
quality  by  passin.ij  into  anoihei*  couiur\.  When  mire 
uttered,  the  laws  of  the  country  where  ma'le,  are  a  pledge, 
to  all  nations  that  the  assi_i;iiec  may  reoover.  Wlieii  the. 
obligor  contracts  lo  hind  bintself  by  sncii  an  instruiiiciit. 
he  a,u;rees  with  all  mankind  thiil  lie  will  |iay  it  lu  the  as- 
signee. He  ai;rccs  by  the  very  nature  of  th-  iiistruiiient 
lie  inalies,  that  ii  sliall  not  he  considereil  as  a  mere  chose 
ill  action.  \\  here  Iheii  will  be  the  ilipislice  to  the  obligor 
in  saying,  in  liwc  viucnta  renisti,  when  yiui  made  thr  in- 
strunietii — yon  nliall  be  b(ni>id  b>  your  undertaking  to 
pay  ^he  assignee,  as  implied  b\  law  from  the  i>hli.;:ation 
you  fia\  centered  into.  Shall  he  iioi  be  coinpilled  lopay 
the  assignee  when  he  has  engaged  to  do  it,  without  which 


(384) 


I 


uaywood's  reports.  443 

engagement  pel  ha|is.  ovidi-iiccd  b>  siicli  iin  instrument,  0<='-l''9fi- 
the  o'lligee  wniild  nil  Iihm-  rontiMct  d  «'h!i  liiiri  ai  all  ?  ^■^'"^'"^^ 
When  \\r  see  a  iiei^miable  insiiufmnt  in.xh',  it  is  surely 
some  iM  idenci'  that  the  credi'dr  was  iiiUMidcd  to  have 
givater  pii*  ileii;es  with  rcspfci  to  the  ii-aiisfei"  of  tji.'  debt, 
than  It' it  was  ait  instrument  noi  p  issessing  a  transleea- 
ble  qii.iliiy  by  law.  Is  ilierc  any  r-eason  iiia<  the  laws 
of  !his  S'ate  should  give  fewer  |M-niiegis  ii|>on  tiies;-  fo- 
reign conuacts,  than  th^-  laws  of  the  rountry  wheie  ihcy 
were  mad.'?  Siiail  e  Si'.j  ihatourown  citizen  wht>  iia8 
taki-n  ail  a^sigii  iient.  shill  nOi  ■>  le  in  his  own  iinoie.  sliall 
not  be  the  proprietor  in  all  resjucts  by  virtue  of  ih''  as- 
sigoinenr,  when  b}'  goin<  into  the  ronntiy  wluM-e  the  coii- 
traei  was  made,  he  will  be  entitled  to  that  advaoiitge, 
and  will  be  so  considered  ?  Oiii-  courts  are  open  for  the 
inforcing  of  all  legal  conTricts  wherever  m;ide,  accord- 
ing to  their  true  meaning  and  ioieitt ;  b;if  accoriling  to 
the  position  [  urn  now  Ciniroverting.  a  man  by  rennuing 
liimself  from  Vii-^ioia  into  liijs  Ste.ie,  def.-ats  that  assig- 
nee wlio  has  taken  his  assignment  iierc,  of  iiis  reine<!\  and 
interest  entirely  :  or  indeed,  even  if  the  assignnsent  l>e 
taken  in  Virginia,  foe  itipre  is  as  uinch  |iropiMi  t'y  Vi  say- 
ing an  assignmeni  in  Virjiiinia  shall  iio'  ve  t  the  pioper- 
ty,  as  that  ..n  assi;:;innen-  h''re  shall  nut  do  it.  It  is  true 
bonds  made  here  bifore  the  act  of  ^7S6,  were  no'  assign- 
able, becanse  tiie  assignn»eni  of  c/toses  in  action  tend  to 
encour-ige  liiigaiion.  Wh' n  tiierefn-e  a  mao  entered  in- 
to sucli  an  obligaiion,  it  was  no  part  of  the  contrict,  but 
ind>  ed  llie  reverse,  that  he  slnmld  be  li  ible  to  be  sued  by  r,„,x 
an  assignee.  S'leli  a  i)ond  therefore  cannot  be  assi'.;o.  d  ^  J 
in  any  part  of  .he  world  ;  but  the  exact  opposite  nf  ^his 
is  the  cise  with  all  hmids  m.ule  in  Viiginia,  since  the 
year  1748:  and  I  incsume.  th>'  laws  of  no  C4inritry  will 
say,  that  the  coiilrart  of  the  obli.^or  shall  be  divested  in 
his  f.ivnr  of  an\  of  its  original  siijiulaiions,  '\|iich  were 
for  the  benefit  of  the  .bligee  :  om-  ot  which  is  with  res- 
pect to  Virginia  bonds,  that  he  will  be  liable  to  to  a.s-ig- 
nee.  As  well  niig  it  \\<-  say.  that  a  promis-oi.v  note  op 
inland  bill  of  ex.  han;j;i'  di  ;m  ii  in  Eni^laiid,  and  assij^ned 
liere  to  one  nf  one  ciiizi  ns.  shill  not  lie  recnerahb-  liere 
against  the  drawer  oi  makrr,  as  dieie  is  no  l;iw  her-  to 
render  them  negotialih  — tiid  as  we;l  mn^nt  liie  English 
courts  sav,  you  .sh.ill  not  recover  ii.f.ne  us  bcc.u-.r  he 
contract  of  assignaieiit  was  made  in  a  country  where  these 
56 


444  haywood's  reports. 

Oci.  1796  notes  arc  not  nt>j:oti;iliIr.  Were  it  tlic  general  law,  the 
'■^^^'''^^  riiruliiiiii;^  p.ipt'r  of  cacli  coiiiiti'y  wotilil  iniiiu'iliiiti.'ly  be 
confined  \t  itliin  lhi>  limits  of  its  own  territory.  We  could 
take  notliint;  bo'  luoney  tVoin  tlii-in — we  could  make  no 
use  of  the  |iapei-  tliev  circnlali-.  nor  titey  of  that  w.'  cir- 
culate. The  couitiierrial  credit  of  all  would  sustain  a 
contraction,  and  become  palsied.  To  avoid  these  mis- 
chiefs, it  is  a  piiiiciple  of  tin-  common  law  lon,^  ag«  es- 
tablished, that  every  assignment  follows  tlie  nature  of  the 
contract  assigned  :  that  is  to  say,  if  the  original  contract 
is  miide  uni-estiictively  assignable,  the  assignment  itself 
will  convcv  to  the  holder  aniiiircstiirted  power  of  assign- 
ing the  instrument,  and  the  same  itiferest,  pi'iperty  and 
pouer  that  the  fiist  iioldcr  had.  2  Burr.  1225.  I  think 
therefore,  it  may  well  be  assumed,  that  these  bonds  were 
originally  negotiable  ;  they  continued  to  be  so  when  bro't 
into  this  StiUe  ;  and  that  the  assignment  of  them  here, 
vested  the  whole  interest  in  the  assignee,  and  rendered 
the  endorser  a  surety  for  th<-  payment  iipr)n  the  observ- 
ance of  those  terms  ami  conditions  on  tlie  part  of  the  as- 
signee, which  are  implied  ipso  facto  in  the  case  of  nego- 
tiahle  instruments  from  the  assignment  itself.  Upon  this 
foundation  I  shall  proceed  to  inquire,  whether  there  are 
not  su(  h  circumstances  in  this  case,  as  will  discharge  the 
endorser  from  tliis  action.  Wherever  a  note,  and  by  pa- 
rity iif  reason  a  bond,  is  assigned,  its  resemblance  to  a 
bill  of  exciiange  commences,  and  not  before  ;  and  from 
that  nminent  it  lakes  upon  its>  If  all  tlie  properties  of  a  bill 
of  exchange.  Tlie  assignor  of  tlic  note  or  bond,  is  the 
drawer  ;  the  assignee,  the  payee  ;  and  the  ol)li.§"or,  the 
acceptor.  Kidd  on  Bills,  34,  35.  The  engaginient  otthe 
('386)  endorser'  and  endorsee  are  then  exactly  similar  to  the  en- 
gagements of  the  drawer  and  payee  of  a  hill  of  exchange. 
The  engagement  of  tiie  drawer  iti  the  one  case,  and  of  the 
endorser  in  the  other,  is  only  conditioiial  ;  namely,  that 
if  the  paper  be  presenie<l  in  a  reasonable  lime,  and  pay- 
ment not  obtain  d  liiim  the  drawer,  maker  oi'  obligor,  and 
notice  thereof,  be  given  in  reiisonable  time,  that  then  he 
will  p^y  the  debt  himself.  ICidd  117.  The  (layee  oi  en- 
dorsee is  therefore  bound,  fir^t  to  pirsenl  the  bill,  or  note 
or  bond,  in  reasonable  time  ;  and  secondly,  if  payment  be 
refused  or  delayed,  he  must  give  notice  in  reasonable  time 
to  the  drawer  or  endorser,  of  tiiat  circumstance.  If  he 
fails  In  the  performance  of  either  of  these  lecjnisitcs,  the 


Haywood's  beforts.  445 

drawer  in  tliR  one  rasp,  and  (lie  endorser  in  tlie  olhrr,  is  Oct.  1796. 
disrli:»r2:pd  3  Bac.  Ah.  f^lS.  614..  This  nDricc  must  b»^ '"^'^'''^^ 
given  to  all  ;ln'  puieding  p-ririies  to  whom  \:>-  means  to 
resort.  Kidd  118.  119.  It  niti.st  not  lie  simplj,  fliat 
pajini-ii!  has  Jiei'h  refii!<e<l  or  delayed,  but  moreo\er.  Oiat 
Jie  does  not  intend  to  give  credit  to  the  drawee  of  the  bill, 
or  the  maker  of  the  note  or  hoiid.  hut  that  In-  niean^  to  re-  ' 

sort  to  the  endorsei-  for  pajinent.  The  pnipose  of  the  no- 
tice heinjy  to  sijEfiiifi  to  the  drawer  ol  the  bill,  or  etiilorsep 
of  the  note,  that  tlie  endorsee  or  payei-  looks  t.i  him  for 
payment.  A uW  125,  126.  1  />.  ^^- fi.  169.  \  Salk.  \27. 
These  authorities  all  show,  that  the  endorsee  of  h  note, 
must  i^ive  notice  in  reasonable  time  to  the  endorser  <if  tlie 
note,  of  non-payment  hy  the  maker,  and  (hat  he  iutends 
to  resort  to  him  the  endiri'ser.     Now,  has  this  been  done 

in  the  prcsrnf  ease?     These  bonds  were  eiuloi'sed  on  the 

10th  Derember,  1782,  and  Jllsion.  tlie  I'laintiff.  j^ave  no 
notice  till  the  13th  of  October,  1792 — a  !^)a(•e  of  nearly 
ten  years.  In  ail  this  tittie,  it  does  not  a|ip:Mr  Taylor 
knew  of  the  non-payment  by  Lewis.  Surely  ihiscannot 
be  said  to  he  a  giving  of  i.otice  in  reasonr.ble  time.  Had 
notice  bectr  gixen  iti  any  reasonable  time  after,  the  as- 
signment, and  even  at  any  time  before  the  death  of  Lew- 
is, which  hnppened  in  the  year  1790,  in  all  probahility, 
Taylor  would  have  procured  jriyment,  as  there  is  in>  doubt 
but  that  Lewis  was  during  all  the  intervening  time  in  ve- 
ry solvent  circumstances.  He  is  now  dead — his  estate 
divided  among  his  legatees,  and  his  executors  retnoved  to 
South  Carolina.  After  the  hpse  of  sa  many  years,  dur- 
ing which  this  alteiatitni  of  circumstatices  to  the  piejti- 
dire  of  the  creditor  has  happened,  is  it  reasonable,  that 
Taylor,  the  endorser,  should  now  be  compelled  tji  submit 
to  all  the  unfavorable  circumstances  that  lie  might  so  ea- 
sily have  avoi<led,  had  it  not  been  for  the  lu'gligence  of  fanj-\ 
the  endorsee?  Both  law  and  reason  pronounce  that  such  ^  -' 
inconveniences  being  conseqoenc's  <if  tlie  Plaintifl''s  neg- 
lect, shall  fall  open  him  aloiii'.  He  even  did  not  bring 
suit  upon  the  bonds  till  thirteen  months  had  expired  af- 
ter the  assiginnent.  Surelv,  he  might  have  given  notice 
to  the  endorser  in  less  tinn-  than  (his.  He  livi-d  as  ap- 
pears in  eviJence,  in  the  neighhorlmod  nf  the  endorser, 
and  not  more  than  50  or  60  miles  front  Lewis  the  obli- 
gor. But  it  is  immaterial  to  dwell  ujimi  this  ciicum- 
stance,  as  the  bringing  of  suit  was  no  excuse  for  not  gi- 


446  Haywood's  keports. 

Del.  I796rvin^noricpornon-|(aymetit.  That  wan  an  act  lie  was  not 
^'^^^''^"^  bitiiiid  to  <!(»  by  liis  en!i;;!j!:enicnt.  His  t'iit;a.e;pmriit  was 
to  applj  ill  iPi'-onHblo  fillip  for  pMvniPi't.  and  in  chsp  of 
n<in  |>:tviii>'ni.  togivp  notirp  in  I'l-M^oiiable'iniis  In  ilip  end 
tliiil  thp  pikI'ii-spi  mi.ehi  |>i ocmp  iiiiymmt  niinsplf.  Ppr- 
haps  hp  niifflit  liavp  |iriiriii-''d  paynipnt  iipon  iMsier  te'ins 
tbiiii  ii  lnwsiiii  xviiiild  ipquin.  Hi'  is  noi  'hfiifoip  to  bo 
arcdiiiititbip  fill  ibc  inro:  vpiiipnci-s  rpsiiltiiija:  from  the  de- 
lay o((  n^^idiMil  by  tlip  piospcuJiori  of  a  suit.  Thp  FUiii- 
tiffsnlrly.  who  was  tlip  cause  of  thp  dpJay,  must  abide  its 
coiis.qiipiicps. 
/  U|>'iii  iliis  part  of  thp  casp,  tbpipfip,  I  trust,  it  is  not 

rash  to  roiirliidp,  tbot  the  I^hiiiiiiff  must  fail — iip  has 
gi\.  II  no  such  iiolirp  of  noii-paMUciit.  as  tlip  law.  and  the 
natiiip  of  hi-i  coiitrjict.  icijiiii-cd  ;  ^ind  by  bis  failure  in 
that  paiiiciiljii'.  hiis  made  tlip  bonds  ills  own.  and  dis- 
cli;u-.u;i'd  tlip  iiulorsrr  from  lii>  warranto.  Hp  has  not 
only  r;illpd  io__e;ivp  notice,  liui  sonn  »(tpr  the  assia^nnipnt, 
ha\iii.i;  stcti  Lewis  and  converspd  with  bim,  and  inquired 
into  his  cii  tiiinsiancps.  and  ipccivpd  a  partial  pajmriitof 
tin-  lioinis,  ho  inlornied  Tiiylm;  iIm-  indorspr.  tliai  Iip  con- 
sidered him  as  clear  I'i'ni  bis  stiiptysbip  rir  warranty  of 
the  bond  ;  tlicrchy  piiitiHi;  him  iiiio  a^sta'e  of  si'ciirity 
and  iiialtpotion  lo  ibc  busiiipss  for  thp  I'litiirp.  InstPad 
of  thin,  had  lie  tlirii  ii.lulined  the  indoispr,  tli:if  be  could 
proi  lire  pa>  imnt  but  for  part. and  Inoked  in  him  for  'he  bal- 
ance, ilipie  is  no  doiibi  but  tlip  indni'si-r  would  have  taken 
mea~nii's  to  procuip  pavmpnt,aiid  all  the  ini  (iii>pnipiicfs  & 
diflic'lties  wbii  li  hm  <•  simp  arisen,  would  liaxe  bfPii  |ipe- 
ventrd.  How  bard  and  unjiis'  ilipn  wnuld  it  be,  after  so 
mini;  neiclijifencp,  and  such  a  declaratinn  on  ibe  pait  of 
Mshm,  now  to  make  tin-  indorspr  liable?  But  indepen- 
dent of  the  Want  of  notice,  and  ibis  dpclaration  by  the  in- 
dnisip,  ilipre  is  annilipi  circtiiiistaiicp  in  this  ca'-p  which 
will  indniiitabl>  tiisciiaij^e  llic  indorser — tin-  indorspp  re- 
ceivptl  part  of  'hi  money  from  Lercw,  fivcnr  sixnegioes, 
within  two  ni'iiitb-  aliir  the  a'^sij^niin'iit.  and  sevpntpcn 
\J^°°)  (l.iiiisacd  weiuh'  iftnbacio.  on  the  tenth  of  December, 
1784;  and  llie  rub  is,  that  if  the  indnrspe  gives  credit 
to  tin- maker  I'f 'be  note,  be  theieby  discbaif^es  tliP  in- 
dorspr; and  the  receipt  of  miy  pail  is  a  f:i*  in.e;  of  credit 
to  'h'  in..ker  or  oMiyoi,  iiiiIp-s  he  i^ivp  m^iice  Im  ihe  bal-' 
aiic.  fits  iioii  p:  yiiieiii,  1  Show.  102.  1  L.  iliiii  744. 
2  .S77V/  745.  1  b'Hs.  48,  Kidd  on  liiUs  65.  Bull'  JVTfsi. 
Pri.  271.      In  the  piesi  nl  >  a-.     In- indoi  sc  lectlvpO  part, 

aud  delayed  receiving  the  residue  with  the  pi-uspect  of 


HAYWOOD'S    KEPORTS. 


447 


getting  an  advantatijcous  b.ngniii  of  Letvis  afterwards  ;Oc''i'56. 
and  so  fai"  "-.is  lie  IVnin  intinr.itinc;  to  Taylor  iiiiy  ink'ii- 
tiim  l<i  ii-H()itli'  liini  for  thr  li^l;ii.r(>.  tKai  lie  i-xpiessly 
i]isr|iiii(;rs  itiiM,  n|i(in  this  pi-int  :ilsii  lie  niiis'  fail.  The 
PiiUiiiitt  Ir  \v<Mi'/  itisists.  (IiHi  lidwpvcr  the  nssiajtimcnt 
miglii  Ix  (uiistiued  ho  hs  tn  aftVcf  hiio.  jot  (hat  is  "ot  the 
Colli!- .(f  lie  isgyins;  Ulion,  jic  i- jiniiili:  ii;  on  a  sjiorial  ron- 
tract  set  forlh  iti  tlip  dcci-.u  atioii.  Ity  wliidi  Iip  is  to  have 
rpcoiirsf  to  T(/i//or  wliPoiM PI- it  sli;ill  nppfai'  he  i^  not 
able  10  get  ill'  iiioiipy  of  Lfwrs.  His  roini'ipl  wpII  know 
it  would  iiol  do  o  ipU  upon  the  assienineiit.  and  admit 
the  bonds  to  iic  np_n'otin!)li-,  and  tlierefoce  they  dpvlspd 
this  spiiinl  roniit,  in  whirli  tiny  rliiisc  to  consider  ih'-in 
as  nniiPgoti;ili|p.  ami  as  liMvin's;  Ikmmi  'piisspd  (o  Mfiion 
uiuIpi-  a  sjipcImI  |iarol  nnili-art.  Tlipy  iilii^idon  tin'  as- 
signiiK'ni,  or  use  it  as  made  lor  a  sppci;!!  piiiposi'  snbsei-- 
vicni  to  till-  p;irol  contrat  ti  '  I  npiMplicnd  tin-  court  and 
jury  will  take  no  nntire  of  any  parol  Mjcrrenient,  wlieii 
thi-rp  is  an  agfcement  pvidpnr.p<l  in  sc.ripfis,  as  iIktp  is 
in  this  rase  by  the  iii'loiseini  nt.  wliich  ,'niplii'S  a  vppy 
diffiipot  ciniirari  froni  that  attpniptcdio  hp  proven  at  tiie 
bar.  Tlip  wriiien  assignincni  hinciv  tjip  holiirr  ir  cpitain 
conditions,  utidpr  pato  of  losisij;  his  icccMirsp  to  tlic  in- 
dorspi-  ;  tlip  |iaroi  a.i;i  PiOiPiit  as  Htlpvnp'ed  to  bp  proven, 
rel'Msis  frinn  llip  obscrvancpof  any  condition  on  hispart, 
and  .skives  him  an  alisoJMtp  reroui'SP  at  any  distancp  of 
time  ill  casp  of  iion-pavnien'.  S'lpposinc;  the  bonds  to 
liavp  bppii  iipgotiablr,  th'-  admitliiig  of  a  parol  contract 
to  ovprtiirn  or  to  al'or  tliP  lp!:;a!  imjort  ol'  the  indorsc- 
nieni,  can  lu-xir  be  toleraipd  ;  no  oiip  would  take  a  paper 
passing  liirongb  many  hati<ls,  in  racli  of  vvhich  the  inslrii- 
meiit  might  ha\e  Inen  clogged  \v  itii  some  secret  parol 
Coiilract.  Ii  x^otild  I)p  liable  to  piidlpss  liligalion.  Siicli 
an  admission,  it  is  easy  to  perceive,  strikes  at  tlip  very 
existence  of  all  iipgoliablr  pnpprs.  Sniiposing  the 
bonds  to  be  uiiiipgotiabip,  the  parol  leslimony  cannot  be 
received  to  control  the  written  ai^ree^iipot.  Ijeciosp  there 
is  more  ccr'ainfy  in  irlying  upon  that  whichis  preserved 
unaltered  in  writing,  than  in  Ihe  wavering  memory  of  ^„Qq% 
any  liMiig  witness — it  cannot  be  i-pgardeil.  2  Bac.  ,4&.  *-^''  ' 
309.  8  Rep  309.  Gilb.  5  ^  6.  In  ritber  case  we  must  apply 
onrsi  lvp-.solel_v  to  the  consideration  &  ((nisrfpicncps  of  the 
assi-uiin  1,1  ii  doi'sed,  .>•  i\  draw  our  ctniclMsi'itis  from  that 
onl>.  What  llies  coiiSi  qiieiK  cs  aie,  1  iiavp  alieady  con- 
iiidered,  and  they  ha\e  turned  ont  in  favor  of  the  indorsee. 


443 

*^^  HAYWOOD'S  REPORTS. 

,^^^,_'  It  is  plain  (lie  Plaintiflrramint  i-ccovcr  on  any  of  (lie 
gfiicPiil  ((Hints — 'lit'io  is  ev  i.'Irncc  (if  ni'itiey  paid  to  the 
ii.«e  <:f  Taylor,  but  tlirri-  is  al'-o  rvidcnrc  \^liir!i  slicws  in 
llic  cyi'dts  wliirit  liiive  taken  plarc.  that  tlieso  bonds  were 
rec(-ivod  in  payniftit  for  the  money.  They  are  in  law 
made  to  be  the  bonds  oltiie  lioldpr  Iiy  tlie  fii-ciiinst:iiire.s 
tiiat  have  liappeiird.  Tbev  are  absfijnfc  discharges  of  tiic 
indorser.  Wlien  an  indorsed  papf!  is  kept  --iii  iitircasnnablc 
time  in  tlie  hands  of  tin-  iiuiorsec,  tin'  lA'.\  deems  il  a  pay- 
ment of  a  picrediiig  debt  by  him  wh"  made  the  indorse- 
ment. He  raiinot  recoveron  ilir  s|ircial  ronnt.  adr.iitling 
tlie  parol  evidence  may  be  received,  for  tliatmust  be  pro- 
ven precisely  as  laid.  The  ixidence  is,  tliai  these  bonds 
were  assigned  for  the  purpose  of  enabling  the  assignee 
to  sutr  in  his  own  name,  and  to  recover  the  money  to  bis 
own  use.  This  is  the  evid^re  both  by  the  parol  and 
written  testimony.  Tlie  derTliration  is,  that  he  was  to 
sue  in  the  name  lA'  Edimind,  and  the  money  to  be  recov- 
ered (o  the  use  of  Edmund,  and  to  go  as  a  satisi'ac  tion  of 
his  debt  to  Mston.  The  variance  is  palpabh-  and  mate- 
rial. The  eiidence  cannot  be  taken  to  siipjiort  (be  spe- 
cial count,  and  it  must  be  deserted.  But  let  it  be  granted 
as  is  contendeil  for  on  the  otiier  side,  that  these  bonds  were 
not  negoliable  ;  still  the  indorsement  of  liiem  lo  .Ulstoti, 
bound  him  to  use  the  same  diligence  to  procure  payment, 
and  to  give  notice  of  non-paynitiit  in  a  reasonable  time,  as 
if  they  had  been  actually  negotiable.  For  the  proof  of  this 
position,  I  cite,  2  IVils.  353,  which  Cully  comes  up  to  it. 
There  the  PlaimitK  being  a  creditor  cd"  the  Defendant, 
received  from  him  a  draft  not  negotiable,  and  kept  it  by 
him  without  presenting  it  for  payment  four  months  :  in 
\\liicli  time  the  pet  son  upon  whom  it  was  dra»n,  became 
insolvent.  Though  it  was  admitted  an  unnegotialile  pa- 
]ier,  yet  his  negligence  wiis  deemed  upon  argument  to 
have  made  it  a  payment  ami  disc'arge  of  the  debt  due 
from  the  drawer.  Upon  each,  or  some  of  these  points,  I 
trust  tliere  will  be  jndginent  toi-  the  Defeiidant. 

Vavie  for  the  Pl^iiitilf. — This  case  is  not  at  all  con- 
nected with  the  rules  relali\e  to  bills  of  exchange — these 
(390)  **'■'' ''""  oflTspriiig  of  commerce,  in  which  it  is  of  the  high- 
esl  imporiance  that  all  possible  piiin  tiiality  be  observed. 
In  a  couiitf>  as  commercial  as  England,  no  <lelajs  can 
be  admified  wiilmut  i:ieai  danger  to  the  party  wln>  pas- 
ses a  negotiable  paper.     The  drawee  may  cither  be  h 


Haywood's  reports.  419 

merchant  himself,  liabif  to  fuil  upon  (he  loss  of  a  ship  Oct.  1790. 
thi>  fiiiliiie  i>r  a  t"()iei,!;ii  corie.sjxnnh'iit,  and  IVom  «  thou-  '"-''""''^'^ 
sand  other  causes,  to  which  as  he  is  hourly  srShjcct,  it  may 
be  every  hour  exported — or  if  the  drawee  Wiiot  a  mer- 
chant, lie  may  be  a  nianufacliiicis  or  in  olhei'  situations 
dependent  for  the  money  with  \>hirh  he  intends  to  pay, 
on  a  inerc.tiant,  subject  to  all  fljese  lasnalties.  Many 
merchants  in  splendid  circunistai.oes,  by  die  failure  of  a 
foreign  house  nttei  ly  unknown  to  liieir  home  dealers  and 
corrcspc.ndents,  suddenly,  in  the  course  of  aday,  iiave  be- 
come bankru|)ts,  and  passed  away  like  shadows.  It  is 
very  proper  therefore  ili  that  couHli'y.  that  llie  recci\er 
or  holder  of  a  neajotialiie  papei",  should  he  bound  (o  ap- 
ply for  payment  wifi.nul  delay.  Were  tliat  not  a  condi- 
tion imjjosed  by  law.  Ho  one  would  be  safi-  in  passing-  a 
bill  to  anotlier— iie  never  coSId  know,  tliough  everv  min- 
ute in  dantjer,  wltcn  his  liability  ceased,  nor  when  he  was 

certainly  discbarj^ed  from  the  recourse  of  the  holder. 

This  would  .e^reatly  check,  ifnut  destroy,  Ihe  currency 
of  a  paper  medium,  promotive,  as  it  is  of  cmnmercial  de- 
signs. But  with  respect  even  to  net-'oliabie  jiapei-  in  this 
country,  there  is  no  necessity  for  such  deipatrh;  t!ie  ge- 
nerality of  the  people  liere,  are  substantia),  imlependent 
farm<'rs.  whose  property  an<l  circumstaiK)es  are  mit  sub- 
ject (o  the  contingencies  thai  are  likely  to  bcfal  maimfac- 
turers  and  oiliers  in  En.^-land.  It  would  be  useless  to 
adopt  here,  all  the  rules  for  accelerating  ajiplication  for 
payment,  and  notice  to  ihe  endorser,  that  have  been  found 
necessary  there.  It  is  argued,  that  if  this  assignment 
cannot  have  (he  qualities  contended  for  by  the  Defendant, 

it  Was  <)['  no  use,  and  nugatory  in  J}IsIoh  to  req.nire  it '- 

Though  it  vested  no  property  in  Jlstoii,  yet  it  is  attended 
With  eflfects  very  important  to  liim.  The  endoVsesnent  of 
a  bond  not  m-goriabU\  passes  ihe  ecpiitablc  interest  to  the 
assignee— lie  may  maintain  a  suit  in  the  nann-  of  the  ob- 
ligee, which  the  obligee  will  not  be  permitted  to  dismiss 
at  pleasure.  Should  he  attempt  a  disrtiission,  a  Court  ot 
Equity  will  enj.jin  him— when  (he  money  is  recoveicd,  he 
may  by  virtue  of  lb-  as.signment  apply  it  to  his  own  use. 
Ihe  assignment  will  cause  it  to  be  no  maintenance  in  iiim 
h,  prosecute  the  suit  in  the  name  of  the  obligee— and  the  r'^Ol^ 
blieriffwhen  he  levies  the  iftoney  by  virtue  of  the  execu-  ^  ' 
tion  issued  on  the  jn.lgment,  may  pay  it  to  the  assignee, 

by  torco  ot  the  assigninehf.  and  he    will  be  justified 

The  assignment  operates  as  a  complete  jiower  given  to 


150 


HAYWOOD  S  REPOUTS. 


Ocf.  1790  fiip  assiafiiee  to  reicivc  'he  money — such  an  assi.i^nment 
hits  tiasp  «>tr,Tis  IViiin  'lie  cuiiiiini  iiii|ilifil  by  ilu-  a'>'<ign- 
i!)i  nt.  an  fiMin  nuinriil  <  qiiity  ;  but  it  |i;iit  ikcs  n»r  of  a- 
ny  ul'  (lie  qiiiiliiics  of  lu  ondo.  scii^'iii  of<i  iic!;i>tiiil)l''  pa- 
pi'i'.  riit'sc  ai'p  <lrii\fil,  noi  fMiin  any  |ifiii(-i|(Ie  ol'iialu- 
rai  iquity.  but  I'vrit  rules  lound  necessary  from  experi- 
ciico  lo  be  est 'liilshi'il  loi-  Ilu-  |iui-;mibcs  of  ( ouiini'iTi' — 
sirict  Hi'tincial  lull's  priscribed  by  ijif  nisiom  of  mer- 
chants, to  oliviate  the  inciuuonicnces  wliich  wouiil  lesult 
from  liansaciin.if  eominereial  aifairs  by  moans  of  a  pa- 
per rifdil,  wcic  ilie.>  noi  esiablislied.  TIjcv  ()('|)iii(1  up- 
on tliis  ciistoiu,  ai-e  ascertann-d  b\  ii.  and  arc  apjiliiable 
to  no  contracts  butsucli  as  are  ilie  sulij-cis  of  that  riistoin. 
The  bonds  ihat  !jja\e  rise  lt>  the  jjn-sent  conti'oversy, 
are  indetd  assiijnable  by  li^j;  law  of  Virginia  :  hut  tliat 
law  add>  lo  them  in  tln-ir  assigoed  slate,  even  when  as- 
signed in  Virginia,  no  other  riri'.nmstanre  at'endaiit  on 
bills  exchange,  bni  this,  that  the  assignee  may  sue  in  bis 
own  name.  That  law  does  not  say  loey  shall  be  assign- 
able in  like  manner  as  bills  o!' ex.  haoge,  or  as  ])romi3- 
soiv  notes,  or  as  the  art  of  3  &  4  .innc.  C.  9.  or  one  act 
of  1786,  c.  4,  did.  Fnun  this  omission  in  the  act  of  Vir- 
ginia, il  is  evident  tiie  Legislauire  intended  no  more  than 
to  ve>t  the  properly  of  the  hoods  in  the  assignee,  foe  the 
purpose  ol  eiiaiiliiig  hiiii  to  sue  in  his  own  name,  and  by 
that  means  to  exchicie  the  obligee  from  any  interference 
Willi  the  suit  after  its  conmenremeiit.  It  was  not  made 
with  a  view  of  benefiiing  IhecomoKicial  partof  the  com- 
munity, hut  sini|ii>  to  preveot  the  injustice  of  assignors  ; 
who  .s  ijie  law  stood  ai  the  lime  of  oi. iking  tlie  act. were 
deemed  to  be  Hie  r.al  Plain' id's,  and  to  have  at  law  a 
power  o\ei  till' suit — and  l)y  atieoi|iting  !o  dismiss  the 
suit,  or  !o  receive  the  money,  or  iiy  cnniracting  adebt  alter 
the  assignmeiil.  might  either  deleai  the  ai  tioii  of  the  as- 
signee, or  compel  linn  lo  resort  to  a  Court  of  Etpiity  foi" 
relief.  All  tills  was  [oevented  by  saying,  the  assignment 
slioold  vest  a  right  of  action  in  the  assign  e  in  his  own 
iiaim — tlius  far  th  act  in  en  led  t<»  go,  and  no  further: 
and  il  maoifesis  its  design  siiil  more  clearly,  by  pro\id- 
iiig  that  the  I'laiinilT.  the  assignee,  in  an;,  siiii  bro'.ght 
by  him,  shall  allow  alt  discoun  s  t  lai  the  Defendant  can 
prove,  either  igainsi  toe  1'  .tiiiiilT  himself,  or  agtinst  the 
first  .ibli-ei ,  before  notice  if  h'  assign  n  nt  gi^en  '  i  the 
Defendant — a  circianstance  evidently  separating  the  case 


Haywood's  reports.  451 

of  these  assignmpnts.  from  those  of  pupers  negotiable  by  Oct. 1796. 
the  custom  of  mrichants.  Fitf  by  ihe  inlrs  of  ihat  cus-  ^.^^^''">*«' 
torn,  the  instiunient  in  the  hands  of  tin' Hssij^nee,  is  •  x-  (392) 
eniptcd  from  the  (ipriMtinii  <if  all  payments  and  aecree- 
ments  whatever,  except  those  apparent  upon  thf  instrti- 
meiit  itself.  Tills  provision  alone  fnll>  proves,  tliai  these 
bdiids  wlien  assigned,  were  noi  inicnded  to  have  any  par- 
ticijiation  of  the  nature  of  hills  of  excliange,  save  only 
that  which  I  have  before  mentioned.  They  are  not  enti- 
tled to  be  othcrvxise  respected  in  tin*  li.^lit  of  bills  of  ex- 
change, nor  as  possessing  any  of  their  characteristic  pro- 
perties, hut  only  thai  of  vesting  hy  as-ignment  in  the  as- 
signee, (ii  all  events  these  bonds  were  not  assignalile  by 
an}  law  of  this  country,  and  if  contrails  are  lobe  ex- 
pounded h}  the  laws  of  the  country  vvlicie  made,  as  sta- 
ted in  1  HI.  Rep.  238.  as  cited  on  the  other  side,  tiie  con- 
tract of  assiifninent  being  made  here,  can  only  have  the 
effect  which  ihe  laws  of  tliis  counli-y  will  give  it — a  (low- 
er to  sue  in  the  name  of  the  obligee,  as  sii  forth  in  the 
special  count  in  this  dedaralioii.  The  contract  tteing 
made  here,  must  be  construed  by  the  la«s  of  this  coun- 
try, in  the  same  manner  as  the  acceptaore  of  a  bill  in  one 
country,  that  was  drawn  in  another,  shall  be  snh)e('t  as 
to  the  acceptance,  to  Ihe  laws  of  ihe  country  wliere  that 
acceptance  was  made.  2  Strange  753.  And  as  English 
or  Indian  interest  is  to  he  allowed  in  contracts  made  in 
those  countries,  and  in  the  same  manner  as  an  English 
court  will  carry  into  effect  a  contract  made  in  France, 
though  void  by  the  law  of  England  had  it  been  made 
there.  This  one  general  principle  governs  tiie  wliole  of 
these  cases,  that  ihe  law  of  the  countey  where  the  con- 
tract was  made,  shall  decide  its  legal  consequenci-s,  its 
legal  import  and  extent  ;  and  according  to  this  |)rinciple, 
Virginia  bonds  when  assigned  in  this  country,  have  al- 
ways been  sued  upon  in  llie  name  iif  the  obligee.  This 
was  one  of  the  reasons  the  court  went  upon  in  reversing 
the  judgments  given  in  the  actions  in  the  County  Court 
of  Caswell.  The  action  was  iheie  iiistitntrd  in  th^'  name 
of  the  assignee,  then  permitted  by  ilie  court  after  issue 
joined,  to  be  altered,  so  as  to  appear  to  have  heen  insti- 
tuted in  the  name  of  the  obligee.  I  do  not  deny  liut  that 
the  assignment  of  a  bill  or  note,  implies  tlie  obligatiim  on 
the  part  of  the  assignee  comendrd  for  by  ibe  Difendanl's 
counsel,  but  I  say  these  bonds  were  not  negotiable,  and 

57 


452  Haywood's  heports. 

Oci.  1796  that  therefore  the  assignment  of  iheni  will  not  impose  any 
^'•^'^''^^^  snrli  terms  as  the  assignment  of  a  bill  or  note  would.— 
li  operates  as  a  mere  powerto  institute  suits  in  the  name 
of  the  obligee  ;  and  is  evidence  against  him  uf  money  had 
(393)  and  re(  cived  from  the  assignee,  which  evidence  supports 
one  of  the  general  counts  in  this  declaration.  Thiii  upon 
what  ground  stands  tin-  defence?  Mr.  Taylor  has  rerei- 
ved  our  money  ;  the  consideration  for  wliirh  was,  that 
thrsi-  bunds  should  be  taken  by  the  PlaintifT,  and  should 
enable  him  to  receive  the  money  of  Lewis.  He  has  not 
been  able  to  receive  it — tiie  consideration  has  failed  ;  and 
wheif^or  it  does  fail,  the  money  advanced  with  a  view  to 
it,  shall  be  refunded,  and  may  be  recovered  back  in  an 
action  upon  an  indebitattis  assumpsit.  If  a  bill  be  given 
for  an  bundled  pouiuls,  and  tiie  holder  cannot  get  it  paid, 
he  miiy  demand  the  hundred  pounds  as  a  debt.  1  Com. 
134.  3  Lev.  364.  Bull.  A"isi  Prius,  131.  As  to  what 
shall  he  deemed  reasonable  notice  in  the  case  of  negotia- 
ble |>apers,  that  depends  cntii-ely  upon  the  nature  of  the 
traiiHMClions  between  the  parties.  In  some  cases  ofdr..ff3 
on  bankers,  the  holder  of  the  piper  has  been  confined  tu 
a  day,  or  one  or  two  hours  ;  in  other  cases  he  has  been 
limited  to  the  next  post.  What  shall  be  deemed  reason- 
able notice,  can  only  be  inferred  from  the  nature  and  in< 
tent  of  the  contract,  and  must  deprnd  in  every  instance 
upon  its  own  peculiar  circumstances — no  general  rule  can 
be  applied  to  all  cases,  except  that  general  one  of gi\ing 
reasonable  notice.  Now  what  was  the  true  intent  of  this 
contract  ?  It  was  that  the  assignee  should  institute  suits 
ag<4inst  Lewis;  the  assignment  was  made  to  give  him  a 
power  so  to  do  ;  and  that  upon  the  event  of  his  not  get- 
ting payini'iit  from  Lewis,  he  might  lesort  to  Taylor. — 
He  was  ii'it  by  the  nature  of  this  contract  (as  it  is  gene- 
rally nndeisti.od  in  this  country)  to  have  any  iccoiirse  to 
Taylor  till  after  he  had  li-ied  the  event  and  issue  of  a  law- 
suit »ith  Lewis.  He  was  not  bound  tu  use  diligincc  ac- 
cording to  the  ti'dinical  signification  of  the  word.  Such 
assignmenis  in  this  country,  as  they  are  explained  by  the 
comiiioii  course  -  f  hnsinesii,  and  as  they  arc  understood 
by  thi-  people,  pl^ce  the  assii;nor  in  a  situation  not  to  be 
calh'd  upon  till  af'  r  actions  <-ommcnced  and  tried  against 
tilt-  o<)ligors.  Mstnn  did  use  as  much  diligence  as  it  was 
in  tlie  power  of  aii>  man  to  use — he  received  tlie  bonds  in 
1782,  on  the  10th  Oeceiuber — he  applied  for  and  received 


Haywood's  hepouts.  453 

some  part  of  the  money  soon  afterwards — lie  continued  Oct.  1796. 
to  make  repeated  applications  all  throuijli  the  year  1783,  -^"^'"^^ 
be  sued  soon  sifter  the  year  1784,  and  immediately  upon 
the  death  of  Lewis — and  befm-e  his  suits  were  dismissed 
from  the  docket  of  the  court  iii  Virginia,  knowini^  that  an 
abatement  must  take  place,  he  .'■ued  the  executors  iu  this 
State — immediately  upon  obtaining  judgment  here,  with- 
out any  d'  lay  he  followed  them  into  South-Catolina.  mid  C394^ 
surd  there,  and  before  the  determination  of  the  suits  there, 
discovering  that  these  suits  must  be  unsuccessful  from  the 
rexersal  of  the  judgments  in  this  court,  wiihin  a  day  or 
two  after  the  i-eversal,  lie  gave  notice  of  all  these  trans- 
actions to  Taylor.  What  more  could  he  do  ?  And  what 
more  could  Taylor  have  done  himself?  He  did  not  dis- 
charge Taylor  from  'pis  iiiibility  by  his  conversation  up- 
on his  letui  n  fiiim  Lewises  with  the  negmes.  You  are 
clear — was  replied  to  a  questi<in  on  ihe  pari  of  Taylor, 
about  Lewis's  cii'cumsiances — the  answer  meant  no  more 
than  that  his  circumstances  are  such  as  will  indemnify 
you,  or  render  it  very  iinprobahle  vou  will  ever  be  resort- 
ed to.  He  concluded  by  expre?  r,iiig  a  hope  that  a  deci- 
sion would  be  io  favor  of  the*P!aintiff. 

Judge  WiLiiAMs — Judge  Haywood  was  concerned  in 
this  cause,  and  lias  lift  the  bencli.  1  am  sorry  for  it,  as 
a  cause  similar  to  the  present,  came  on  at  Salisbury  at 
the  last  term,  and  his  opinion  was,  that  the  .ules  res- 
pecting negotiable  instruments  did  not  appl>  to  unnego- 
tiable  ones,  tliough  in  fact  passed  bj  a  dibior  to  his  cre- 
ditor ;  I  mention  this  opinion  now,  becituse  iho'  I  then  dif- 
fered, I  am  not  now  sure  but  it  was  the  rightoiic.  These 
bonds  were  not  negotiable  in  this  State,  and  the  assign- 
ment made  here  according  to  the  caseciied  from  Bl.  Rep. 
mnsi  be  governed  by  the  laws  of  this  country,  and  is  to  be 
considered  as  the  indorsementof  paper  not  negotiable,  and 
may  confer  on  the  assignee  only  ihe  powers  attributed 
to  such  assignments  in  the  argument  for  the  Plaintifl"; 
and  if  notice  of  non-payment  by  the  obligor  is  not  neces- 
sary, the  Plaintiff  may  probably  be  entitled  to  re- 
cover on  the  special  contract  laid  in  tiie  declaration, 
which  is,  that  the  entlnrsee  should  sue  in  the  name  of  the 
obligee,  and  in  case  of  his  not  bein^  able  to  obtain  satis- 
faction, should  resort  to  Taylor.  The  greater  part  of  the 
time  elapsed  since  the  ind'osemcnt,  has  been  employed 
by  the  indorsee  iu  pursuing  the  obligor — he  sued  within 


454  iiaywood's  reports. 

Oct.  1796.  thirteen  or  fourteen  months,  antl  has  continued  to  sue 
*-'"^''^**'  ever  since.  The  jury  found  for  the  Plaintiff,  and  he  had 
jiidarment. 

Note.  —The  opinion  of  the  court  ex  relatione  It  is  cer'ain  however, 
that  it  was  in  favor  off.  recovery — either  upon  the  ground  that  an  un- 
negotiable  piper,  thouph  indorsed,  does  not  bii  d  the  indorsee  lothe 
same  dilipence,  as  if  it  wi  re  negotiable  ;  or  that  the  special  coiuract 
not  stipulating'  expressly  for  that  diligence,  the  indorsee  was  not 
bonnd  to  use  it,  op  that  his  suing  within  thirteen  or  fourteen  months 
in  his  own  name,  was  a  using-  ot  sufficient  diligence. 

Note. — On  the  trial  ol  tlus  causu  the  following  points  occurred  and 
were  deciiled.  Thi-  Dpf>  ndant  offered  a  deposition,  the  notice  for 
(395)  which  was,  that  il  would  be  taken  on  a  certain  day  named,  at  H  lifax 
court-house,  in  Virginia  ;  the  ciip'ion  express-'i!  a  taking  on  that  day, 
at  the  house  of  Manning,  at  Halifax  couri-house  ;  and  a  witntsssw^rn 
in  court,  proved  thai  Manning's  house  stood  about  eighty  yards  from 
the  court-house. 

Per  Curiam — It  cannot  be  received.  The  receiving  of  evidence  by 
depositions,  is  only  adopted  from  necessity.  It  is  sul'jeci  to  many 
abuses.  Ir  we  begin  to  say  it  may  be  taken  at  a  plac  near  that  fixed 
upon  hv  the  notice,  it  will  open  a  door  to  baud.  The  p.  rty  may 
cause  it  to  be  taken  near  the  place,  whilst  llie  idverse  party  may  be 
waiting  at  the  place  appointed,  in  order  to  cross-examine.  Besides  if  we 
once  say  that  to  t.ake  it  near  the  place  will  do,  we  shall  never  know 
where  to  stop,  it  may  be  taken  at  agreater  distance  than  eighty  yards; 
one  hundred  for  instance,  or  a  quarter  of  a  mile,  and  yet  besi.idtobe 
near.     The  deposition  Was  rejected. 

The  PlaintifldfFered  the  receipt  of  Mr.  German  Baker,  late  a  coun. 
sel  in  Virginia,  to  fix  the  time  when  the  bonds  wen-  put  into  his  hands 
to  be  sued  upon  ;  and  it  was  urged,  that  he  was  now  dead,  so  that  his 
deposition  cannoi  be  had  ;  and  that  the  rtci  ipt  is  the  best  evidence 
of  ihat  f:<ct  we  can  offer.  That  it  \Vas  the  course  of  business  for 
counsel  logive  receipts  wh'  n  they  receive  'londs  lu  su-  upon,  and 
that  therefore  the  evidence  ofl'ered  should  be  received.  Courts  had 
done  the  lik.  oti  other  occasions,  when  the  course  of  business  ren- 
dered it  proper,  as  in  the  c;.se  of  the  merchant's  clerk  who  made  the 
enti'TVvs  and  died,  and  the  merchant  had  no  other  means  of  proof  but 
his  hand-writing;  it  was  admitted,  as  the  course  of  business  allowed 
of  no  bett'  1  proof. 

Per  Curiam — Let  the  receipt  be  read,  the  course  of  business  admits 
of  no  otht  r  j.roof.  A  record  from  one  ol  the  County  Courts  of  Virginia 
was  oflire<l  ;  it  was  certified  bv  the  clerk  and  presiding  Justice,  but 
no  seal  affixed,  nor  any  rertficat- that  there  was  no  si  al  of  the  court. 
JPer  Curiam — Where  ther>  is  no  sed,  it  should  be  certified  there  was 
none.  We  cannot  know  th:it  there  is  no  "^eal.  unless  it  be  certified; 
and  if  there  be  a  seal,  a  record  thus  ci  riifi  ••!  cannot  be  reci  ived,  in- 
asmuch as  it  is  not  attesied  in  the  most  auioeniic  way  of  which  it  is 
capable.  In  order  to  its  admissihility  therefore  it  must  appear  there 
is  no  seal  by  which  it  can  be  attested.     So  it  was  rejected. 


havwood's  beports. 

Luttcl'loh  V.  Powt'll. 

A  warrant  that  does  not  state  tliat  the  sum  demanded  is  over  five 
pountU,  but  o'lv  thut  t  is  und  r  Iwentv  iiounds,  will  not  au'horize 
an  arres',  and  it  the  'ffictr  makes  an  arresi  und  r  such  vvaiT.nl  and 
attei-waiiN  permits  the  person  arrested  to  go  at  large,  he  Will  not 
be  liabl.-  for  an  escape. 

Case.  f<»f  an  escape.  The  derlaration  stated  tliat  Las- 
sifer  was  indebted  to  the  Plair/fifTin  a  siin\  iiiid<  r  twenty 
poinds — 'hat  he  took  out  a  waii-ant  ajiai'  st  Lassiter,  !he 
tenoi-  whereof  was  inserted  in  the  declai-ation,  and  was 
exniessed  to  be  for  a  sum  under  twenty  p.iunds — that 
Powell,  llie  constable,  leceived  the  warrant,  arrested 
Lassiter,  and  suffered  him  to  escape.  Thewai-rant.  when 
produced.  <  omniandrd  the  officer  t<t  sutonion  Lassiter,  to 
ans><ei  Lutterloh  fur  a  debt  under  twenty  pounds. 

Per  atriam — Alter  ari^uo.ent,  by  fVilliams  Cor  the 
Plaintiff,  aui'.  Davie  for  the  Defendant.  If  Powell  was 
not  authorised  to  arrest,  and  did  arrest,  and  tiien  suffered 
him  to  go  Ht  larice,  the  action  will  nut  lie.  If  he  liad 
any  autboi  ity  to  arrest  it  rnustbe  by  force  of  tiie  warrant 
— this  is  pl.iinfrom  considering  tiie  reason  w!iy  the  law 
requires  a  warrant  in  writing  at  all.  It  requires  it,  that 
the  offi'  er  may  be  directed  precisely  w  hat  to  do,  that  he 
may  know  li<>w  far  he  ought  to  go,  and  that  he  may  pro- 
duce it  in  liis  justification,  when  questioned  for  what  he 
has  dfine  niider  it.  The  law  will  not  permit  that  an  offi- 
cer shall  pioceed  to  arrest  a  man,  and  deprive  him  of 
his  liberty,  unless  pursuiint  to  an  authority  given  him  for 
thai  purpose.  If  he  Was  permitted  to  act  without  a  w ar- 
rant in  writing,  he  might  mistake  the  verbal  precept  of 
the  m.igistiate,  aid  do  either  more  or  less  than  be  was 
commanded.  From  the  uncertainty  of  verba!  directions, 
and  owing  to  the  not  recollecting  the  precise  terms  of 
them,  he  might  easily  act  otheiwise  than  intended.  For 
the  benefit  of  thecitiziu  theief'ire,  that  iie  may  at  all  times 
be  able  to  call  upon  the  officer  to  produce  his  authority, 
and  to  see  precisely  what  if  was,  tin-  law  established  the 
necessity  of  a  wi-itten  warrant.  Any  thing  contained  in 
the  directions  of  tlie  magistrate  or  of  the  Plain'iff.  that  is 
not  contained  in  the  wHpr.mt,  is  no  authority  upon  which 
the  t  ffirer  can  ad.  This  w;irrant,  in  tlu^  present  case, 
is  ii>.:  siicS  iin  one,  as  ran  in  law  justify  the  arrest. — 
The  ».(■'  of  1786.  liiieiis  tint  vn  here  ;he  sum  is  o^er  five 
pounds,  the  constable  shall  arrest,  and  hold  to  bail.     It 


(396) 


456 


II A.y WOOD'S  REPORTS. 


Oct.  IT96.  fihniild  appoar  in  the  warrant  tliat  llie  sum  is  over  five 
^•^"""^^^  piiuiiils.  ollicrvviHe  lie  cannot  ariost.  Tliis  warrant  dues 
not  HtHtc  that  the  stim  (Ipinandod  was  over  fivo  pounds, 
bm  onlv  that  if  was  undt-r  twenty.  It  mi,^ht  be  also 
n'dei'  fi\e,  and  therefore  the  arrest  was  ilh-gal,  and  re- 
leasing the  Defendant  in  the  warrant  was  proper  and 
what  he  ous'ii  to  ha*e  (hine.  Tlie  Plaititifif  was  nonsuited. 
NoTB Vide  Ellis  v.  Gee,  1  Murph.  445. 

Arnold  v.  Bell. 

A  debtor  cannot  dispose  of  his  property  to  avoid  an  execution  after  it 
is  issued.  A  disposition  of  any  part  of  his  pio.ierty  to  ;i  cliild  by  a 
fatlier  indebted  more  than  he  is  worth,  vyill  be  presumed  fraudulent, 
unless  the  child  can  prove  the  purchase  to  have  bei  n  made  for  a 
full  and  fair  value  actu  .lly  paid.  Tlie  declaritions  of  the  father  that 
his  conveyance  to  his  child  was  fraudulent,  are  not  admissible  against 
the  child. 

Detinue  for  negroes,  Tom,  Jane  and  Jinaky.  The 
Plaintiff  pi  oduied  a  bill  of  sale  from  his  fathet,  Jio/m  .^r- 
nold,  duted  the  27th  Febiiiary,  1795,  Tor  Tom  :  and  an- 
other bill  i)f  sile,  dated  th<'  25tli  December,  1794,  foribe 
two  other  negroes.  The  D  fiiidant  proved  a  purchase 
of  these  negroes  at  the  sale  of  a  SlierilT,  who  sold  them  to 
salisly  an  execution,  issued  for  the  State  from  Hillsboro' 
Superior  C-urt,  April  term,  1794.  lor  iBgoO.  He  also 
produced  a  jtidgment  rendereil  at  October  ti-rin,  1794,  and 
an  execution  thereupon,  returnable  to  April  teiin,  1795, 
which  was  s:'tisfied.  The  Plaintiff  then  proved  an  actual 
paunent  fir  Tom,  of  £lOO,  on  the  day  of  the  date  of  the 
bill  of  sale,  and  that  this  money  was  acquired  by  a  sale 
of  his  •  wii  pio[)erty,  and  that  it  was  applied  by  the  fa- 
ther in  payments  to  his  creditors — jiart  of  it  towai'ds  the 
(397)  discharge  of  the  execution  of  £100.  As  to  the  other  ne- 
griies,  he  pi()\<d  (hat  before  the  date  of  tlie  bill  of  sale  for 
them,  he  had  .id>aiiced  mmiies  to  the  father  to  pay  his 
creditors,  and  that  money  was  due  from  the  father  to  him, 
for  articles  putchased  for  the  old  man,  and  delivered 
to  him  in  the  beginning  of  the  year  1792,  to  the  amount 
of  £80.  The  father  had  not  property  enough  to  satisfy 
the  expcuti<in  for  £900. 

Per  curiam — If  wln-n  an  execution  is  out,  and  in  the 
Shci-iff's  hatidH,  a  man  s'-lls  any  p:irt  of  his  property,  and 
th'  execution  cannot  bt^  sa'i.sfi<d  without  selling  tliat  pro- 
perty, it  may  be  sold  by  the  Sheriff^  and  the  previous  sale 


Haywood's  reports.  457 

will  be  invalid  and  void.  Here,  tlie  £100  cxcrution  was  Oct.  1796. 
satisfied.  Also,  If  a  man  bi-  indebted  to  a  laiger  ainoiiiit  ^•^""'^^^ 
tlian  Ills  property  is  wortii,  and  lie  disposrs  of  any  part 
of  his  properly  to  a  chil<l.  altliom^li  thrre  be  no  execution 
issued,  nor  any  judgnn-iit.  it  is  void  as  to  rn  ditors,  un- 
less tlie  child  can  prove  tlie  actual  payment  of  a  fsir  and 
full  ronsidcraiion  ;  by  wliicli  latter  trrni  is  meant,  a  con- 
siderati<ni  so  near  tlie  value,  that  it  may  reasonably  be 
supposed  the  fathei-  wmld  have  taken  tiie  same  tVcmi  a 
stranger  ;  and  it  must  be  left  to  the  jmy  to  detrrraine, 
wlntlier  the  cimsideration  were  a  full  one  in  that  sense, 
or  not.  If  tii"y  find  in  the  affirmative,  and  that  it  wa3 
actually  paid,  bona  fide,  they  will  then  find  lor  the  pur- 
chaser— otheiwise,  not.  The  jury  found  for  ihe  IMain- 
tiflf,  and  he  had  jud.;^ment. 

Note. — The  Uefemlant  at  'li..  tr'ml  of  the  issue  in  this  action,  offer- 
ed a  witness  to  prove  certain  declur.itions  on  th^  part  ot  the  fatlier,  un- 
der wh'im  tlie  Plaiiititrd  limed,  tending  to  show  the  conveyance  made 
to  the  son  was  traiidiileni,  .^nd  m  ide  to  d.  fe;it  creditors.  It  was  sta- 
ted that  th.  se  declarations  were  a  short  time  after  the  d.ite  of  the  bill 
of  sale.  On  tlis  part  of  thv-  PUintift'  il  w.s  objected,  that  thr:  father 
had  given  llie  bill  (if  sale,  and  were  he  now  present  could  nut  be  ad- 
mitted as  a  witness  to  impeach  it  for  fraud.  The  law  will  allow  no 
man  to  give  evidence  to  invalidate  a  i  insiiumcnl  himself  has  given.— 
1  Z>  y  E.  296.     5  Term  579.     3  Term  35.     i  &  5  Burr. 

E  contra — Il  was  argued,  that  the  decisions  in  thf  case  cited,  apply 
only  til  negotiable  lustrum -nls,  that  vhe  witness  iifFcr-d  has  pass  d  — 
It  would  be  attended  with  greai  mischiefs  and  mjurj  to  the  crt-dit  of 
sucli  papers,  were  they  to  be  invalidated  by  him  who  has  passed  Hiem 
afti  r  going  ihriuifh  sev.-ral  hands.  And  though  the  maxim,  nemo  at- 
legal!  turpltudinem  suam  est  awlientlua,  3eemc<l  to  be  adople  1  by  vome 
ot  the  Judges  in  ilncidinjj  these  cases,  it  is  evident  from  tiie  reasons 
they  giie,  that  the  rule  esta  .lished  by  these  decisions,  was  meant  to 
be  particular,  and  not  as  ijeneral  as  the  maxim. 

Per  curiam. — The  decision,lo  l.ejgiveii  by  this  court,  steers  clear  of 

the  obj.  ction  raised  irom  the  cases  cited.     The  question  h.'re  is,  not 

whether  the  father  shall  bt-  swurn  lo  impeach  a  writing  he  has  signed 

I    and  delivered,  but  whether  his  confession  may  be  given  in  i'v.dence, 

toafTvCt  a  third   lerson,  his  son.     A  man's  eoitessioii  may  be  given  in 

I    evidence  to  aflect  himself,    JUt  canno',  to  afl'ect  any  other  person, — 

;    Thai  evidence,  were  it  allowed,  would  aflTict  the  Plaint  fi",  and  not  the     (398) 

I    father,  who  does  not  pretend  to  any  iiiu  rest  in  Ihe  negrufs — therefore 

i  it  cannot  bf  received.  It  would  be  ofduigerous  consequence  to  al- 
low sUfh  after  declarations  of  a  man  who  had  passed  props  rt>  by  the 
proper  legal  ceremonies — he  might  always  overturn  his  conveyances. 
The  evidence  wxs  rejected. 
Note. — Upon  the  point  of  the  execution  see  the  note  to  Belly.  Hill, 
ante72  As  t..  (he  a  1  nissibility  iif  decl  ir.itions  sei>  Clarh  v.  .Arnold, 
will  II  »TW  iod's  jutTf,  2  Hay  287.  Gray  v .  Harrisun,  Ibid  29i. — 
EilOanks  Ex'rs  y.  Burt,  Ibid  oou.  Guy  v.  Hi.ll,  o  Murplt.  15fJ,  tr.im 
which  It  ijipeirs  thai  wh.n-e  ',Ik  declnat  ons  of  a  ,.  imii  were  made 
subsequently  to  the  conveyance  ortranstisr  of  bis  title,  they  are  not 


458  Haywood's  repohts. 

Oct  1796  admissible  against  the  party  to  whom  such  title  was  transferred  j  hut 
V.^'V^^  if  the  iL-cIiirations  were  m:ide  before  the  conveyance,  us  they  would 
be  pood  'igainst  the  person  makinpf  them,  so  they  sliall  be  ad  niited 
ag  inst  any  persr)n  wiio  claims  under  him  by  a  su!)stquent  transt'-r. — 
But  such  (leci'ratioiis,  where  admissible,  are  not  conclusive.  Ufford 
V.  Lucas,  2Maw/;s2li. 

Anonymous. 

Tliis  was  a  writ  of  a  false  jiiilgmeiit,  for  reversing  the 
judgment  of  a  Justice  of  Peace  gi\eii  on  a  warrant.  Tlie 
Plaintiff  in  tiiis  wiit  had  issued  a  sci.  fa.  to  the  Defen- 
dant, to  appear  and  oppose  the  reversal  if  he  ilimight 
proper  j  and  now  Mr.  Poller  moved,  ihat  as  the  Delcn- 
tlant  had  not  nxue  in.  and  so  remained  undefended,  that 
he  might  be  permitted  to  emci  juilginent  nf  reversal. 

Per  curiam — If  you  have  assigned  niaitersof  fad  only, 
you  may  enter  your  judgment  of  reversal;  if  you  have 
assigned  matters  of  lnw.  we  must  look  into  them.  Wc 
cannot  reverse  the  judgment  merel)  because  you  have 
assigned  instances  r)f  false  judgment,  if  the  matters  as- 
signed do  not  appear  to  warrant  a  reversal.  The  as- 
signment was  read,  and  the  principal  matter  was,  that 
no  time  or  |)lace  was  appointed  within  tiiirty  days,  by 
the  Justice,  for  Defendant's  appearand-. 

Per  curiam — Tliat  is  necessary  hy  tlie  act  of  1794,  c. 
13,  s.  S  &  6.     The  judgment  was  reversed. 

Solomon  Walker's  Administrators  v.  Matthew  Hawkins. 

Detiime  for  negroes,  brought  againsi  the  intestate  in 
his  life  time  ;  upon  whose  death,  ijie  Defendants,  his  re- 
preseiiiaiives.  were  called  in  and  ntade  parties;  and  there 
was  a  verdict  against  (hem.  suhject  to  ilie  opinion  of  the 
court  upon  this  question,  vvlicther  an  anion  of  detinue 
will  lie  against  exeiutors,  for  the  d<'<ainer  of  tlieii-  intes- 
tate, and  now  Geu.  Davie  for  the  Defendant,  movcil  for 
leave  to  enter  upon  the  argument,  saying  he  liad  pre- 
pared himself  for  it. 

Per  curiam — Tliis  point  has  been  already  decided  in 
the  n't'-rtivp,  upon  this  circuit,  in  tiie  case  of 
V.  Hughes's  administrators,  and  formerly  at  Edenton.— 
So  rill' Ji;<igini  lit  was  ari-esied. 
NoTB — ride  ChiUs'a  Pleadings,  120. 


Haywood's  reports.  459 

Campbell,  Assignee,  TJ.  Mmnford.  .    Oct.  ir96. 

A  bond,  upon  wliicli  is  an  iiidorsennent,  purporting  that  it  maybe  dis- 
charg^t'l  bv  llu-  pay-nent  of  so  mu'.li  toLiacco,  is  not  negotiable 
under  the  act  ol  ir'86,  Hev   c.  248. 

Action  nj)on  a  botid,  for  nitiply-tvvo  pounds  Virginia 
money,  rondiiioncfl  for  tlie  payment  of  furtv-six  ponixls. 
Upon  the  back  of  the  bond  there  was  an  indnrsemrnt  pur- 
porting Ibat  tlie  forty  six  pounds  should  be  discliargt-rtble 
in  lobacro,  delivered  at  a  certain  place.  Tlic  Defendant  ,  ^^ 
objected  to  the  Plaintiff's  recovery,  upon  tlie  ground  that  (.399) 
this  bond  was  not  assignable  by  llnactof  1786,  C.  4.  and 
he  cited  a  decision  at  Fayetteville,  in  the  case  <>f  Jamie- 
son,  an  Hssigni'c,  v.  Farr. 

Per  curiam — The  indorsement  made  at  tlie  same  time 
wiiii  the  n<Mid,  is  to  be  taken  as  a  part  of  the  condition, 
fvide  2  Term  6+1.  Salk.  498.  6  Mod.  37  J  and  the  bond 
is  not  assiicnalde.  A  bond  for  any  specific  article  is  not 
assignable — such  a  bond  in  'hi-  iiands  of  tiie  assignee  can- 
not be  sued  upon  by  him.  Siippoue  at  the  day  appointed 
for  paymint,  the  Drlcudant  bad  ti'iideied  the  tobaCCO, 
would  it  not  have  been  a  good  tender?  It  en  ttinly  would, 
and  would  liavi-  disiharged  the  debt.  Until  the  day  of 
payment  then,  the  Defendant  may  consider  it  as  a  bond 
for  tobacco  only.  These  bonds  do  not  ansvver  the  pur- 
po-.e  of  coinmcrce  as  money,  inasmucb  as  tbeir  value  at 
the  day  of  payment,  is  not  easily  ascertained,  but  is  lia- 
ble to  br  di>piiiid  between  tlic  parties  and  to  produce  de- 
lay. Th<"y  vvei'i'  not  rendered  negotiable  by  the  act  of 
1786,  as  money  bonds  were.  It  is  true,  if  no  tender  be 
made  at  tln^  day,  tite  obligee  may  consider  it  as  a  bond 
for  nioufy  only  ;  but  then  if  the  bond  is  not  originally 
negotiable,  it  cannot  afterwards  become  so,  for  at  the  time 
of  its  creation  the  obligor  did  not  mean  to  subject  himself 
to  the  action  of  an  assignee.  Judgment  for  the  Defend- 
ants. 

Note.— Fide  Jamieson  v.  Farr,  and  the  note  thereto,  anle  182. 

Peltiford  v.  Sanders. 

A  verdict  bad  been  obtaimd  at  this  term  against  the 
Defendant,  and  now,  Mr.  PoUerUv  the  Plainiiflf.  moved 
that  he  might  have  execution  .gainst  the  Defendant,  he 
being  about  to  remove  himself  immediately,  out  of  th« 
State. 

58 


460  Haywood's  reports. 

Oct.  1796.  pgy  curiam — How  do  we  know  but  a  motion  may  be 
-^'^*''"*^  made  to  ari'ost  judi^iniMit,  oi-  I'or  a  new  trial,  for  some 
cause  we  know  notliiu.a;  ol'  ;it  pi'esiMit  ?  All  tin*  proceed- 
ings  ot  l!if  court  are  injieri.  and  in  Hio  bieast  of  tin-  court 
till  th*>  uM'in  be  eniiiul,  and  subji-ct  till  tliat  time  lo  bp  al- 
tered and  \acateil.  This  cause  m;ty  be  accompani' d  by 
some  of  th'ibe  many  circumstances,  that  may  render  it 
proper  to  alter,  vacate  or  set  aside  the  ijroccedinajs,  which 
l)a\(  already  taken  place  al  this  term.  The  motion  was 
refused. 

Burton  v.  Slicppard. 

In  an  appeal  from  the  court  b  low,  upon  exceptions  filed  to  llie  award 
of  arbltr.itors,  a  new  trial  is  noi  U>  be  had  in  the  Superior  Court, 
but  It  will  examine  into  the  errors  uf  law  in  the  court  below. 

This  suit  had  been  brought  hither  from  the  County 
Cou]-t  of  Person,  by  wiy  oC  .ijipeal  ;  the  f^cueral  issue 
hnd  (leen  pleaded,  and  after  dependin.^  in  that  court  for 
(400)  some  lime,  lli:-  parties  agreed  to  refer  it  to  arbitrators  : 
and  if  was  referred  liy  a  rule  of  court — the  arbitrators 
met  I'l  tiie  presence  of  the  parlies,  and  took  the  case  into 
coiisidi'i'ation,  and  made  up  ilieir  award.  Exceptions 
were  taken  to  it  hy  the  Fliintiff's  counsel,  one  of  which 
was,  that  ihc  arbitrators  had  calculated  interest  upon  the 
whole  siiui,  IV'Mn  the  timeof  payment,  &liad  given  no  inte- 
rest upon  the  amount  of  the  verdict  which  accrued  and  be- 
came due  some  time  before  the  arhiiration.  The  cause 
beios;  now  moV'd  b>  Mr.  Burton,  it  was  urged  by  J/r. 
JVhyte,  that  according  to  the  former  decisions,  this  cause 
must  now  be  fried  upon  the  issue.  The  law  reipiires 
whenever  an  appeal  takes  place  fifiin  a  trial  below  upon 
an  issue  Joined  lo  the  country,  that  (here  shall  be  a  trial 
de  novo  here  j  and  in  that  predicament  is  this  cause  pi-c- 
cisely. 

Per  curiam — If  we  should  decide  as  (he  Defendant'.s 
counsel  coiileuds  for,  it  would  take  away  at  <nie  blow  all 
referi  III  es  to  aibilration  in  the  County  Courts.  Eiiher 
party  dissatisfied,  would  file  exceptions  to  the  award,  and 
appial  upon  their  beingoverriiled.  Insucli  case,ifthis  court 
j)ro< cv-d  uptni  ilie  issue,  the  award  would  be  for  ever  ex- 
cluded fi'iin  consideration,  and  become  a  mere  nullity, 
whether  in  poini  of  law  it  were  good  or  bail.  The  mean- 
ing of  the  law  adverted  to  by  Mr.  Jfhyte  is,  that  when  (he 


I 


Haywood's  reports.  461 

party  appeals  from  what  lie  suppnMes  to  he  the  injustice  Oc'l''9S, 
or  oiistakf  ola  jury,  in  tlicii'  conclusions  "f  (act-  from  f\  i-  ^■^'^^^••^ 
clenre,  tlieii  tii.it  rvidenci-  shiill  be  rtTonsiderccJ  Ity  a  jury 
here  ;  but  when  be  a|i|i('}il.s  from  ^ha'  lif  suiiitosrs  to  he 
injustice  or  ctioi'  in  tbe  Juflsment  ol  tiie  court,  tbat  tlii-ti 
the  court  lieie  shall  reconsider  wliat  Utc  couii  belo'.s  has 
done.  Were  we  to  have  new  'lials  lipjc  le  h  jury,  when- 
ever the  court  beli)w  gives  a  \vi(tM;j^  ju(li;iii"Mt  in  iioiiif  of 
law.  the  inconvenience  would  be  ,e;r''.it.  Tbe  parties  must 
then  sumrii'in  all  thoii  witne-seH  on  both  sides,  ti'  esMb- 
lisli  a  vei'dict  which  is  not  c<implaiiic'd  of,  nor  simgtit  to 
be  rectifit'd,  and  nutbing  is  aimi'd  a"  but  conecling  the 
judgment  of  the  court,  to  the  dointc  of  whicli,  no  vvittn^ss 
is  necessary.  VVe  are  therefore  of  ojiinion  ihat  the  points 
in  which  the  County  Court  is  siifiposed  to  have  erred, 
shall  be  (Considered  here,  in  order  to  be  coneded  ifwroiig. 
A  trial  of  the  issue  is  entirely  out  of  the  (jiuslion. 

QwcErc — If  an  appeal  can  be  regularly  taiicn  but  from 
a  verdict,  or  frtuii  a  sentence  on  iiearing  of  any  cause, 
according  to  tbe  act  of  176^2,  ch,  ',  or  oihcr  similar  acts, 
(in  botii  of  which  cases  there  must  be  a  re-examiuation  of 
testimony)  and  whether  other  setitenrcs  and  opinions  u|)-  (401) 
on  mere  matter  of  law,  should  not  come  u[)  by  writ  of 
error  I 
Note. —  Vide  Erviin  &  Wife  v.  .M/tur's  exr's.  Cunf.  Sep.  490. 

Anonymous. 

A  writ  cannot  be  altered  (Voin  covenant  to  ilebt  f  xoept  by  consent  of 
parties:  but  it  is  usual  among  priiclitioners  to  [lermil  the  amend- 
ment, when  the  mistake  was  occusioiied  by  the  clerk. 

This  was  an  action  upon  a  bond,  witli  condition  for  tbe 
delivery  of  a  specific  article.  The  derk  bad  issued  the 
writ  in  covenant  instead  of  debt,  and  now  Mr.  J\'orwooil 
moved  to  be  at  liberty  to  amend  the  v\  ril. 

Per  curiam — It  has  been  the  cotistant  rule  amongst  all 
the  practitionei's  in  liiis  State,  to  amend  writs  improperly 
issued  by  thi"  clerk  ;  but  tliere  is  no  rule  of  Liw  giving 
us  power  to  ametid  in  such  cases,  without  the  conseirt  of 
the  party.  There  is  nothing  lo  amend  by,  ami  the  amriid- 
ment  asked  for  is  a  very  material  one — it  is  to  alter-  the 
most  substantial  part  of  the  \>  rii.  Thi'ce  is  no  preceditig 
act  to  resort  to  for-  ])r-<iof,  that  tbe  w  rits  \\cr<'  not  intended 
to  be  issued  in  covenant.     An  amciidineiit  of  tliis  sort 


4te  havwood's  hepouts. 

OCM796.  was  onco  made  by  Jtidtcp  Ashe,  in  Morgan  Court,  in 
^■i^"'*''^^  tlif  (HHC  {if  Mc Daniel  v.  Tale;  but  Ite  dcdaied  it  should 
not  be  drawn  into  iiroccdcnt,  but  iliat  lie  all  wed  the 
amendnieni  t-i  attain  the  jtistire  wliirli  seemed  in  itiiit  in- 
stance most  poweifnily  tu  demaml  it.  A  similar  motion 
was  made  at  Halifax,  snnic  tfiins  Mgo.  in  tlie  rase  fit" 

V.  the  exerutor-i  of  TVebb,  and  Jiid.e;e  Macay  said 
he  ronld  not  penult  the  amendment  to  lie  made.  The 
motion  \Vi\s  III  alter  tii*"  word  »•  exeriitnr"  in  the  writ, 
an<l  to  snbMiitute  *■  administrator  if  all."  &r.  ;  and  he 
said  if  tlie  I'lile  pri' vailed  tliat  writs  mijjht  be  altered  in  this 
manner,  it  micjlit  Irnd  to  entrap  the  bail,  wlio  perhaps 
agreed  10  beeome  bail  fnim  the  ciicnmstaiKe  of  heinji;  ap- 
prized t!iat  the  writ  in  that  form  was  not  maintainable. 
"We  cannot  alJo«  nf  tlie  molinn  in  the  present  case,  but 
we  rerommeiid  it  to  llie  np|)osite  eoiinsel  to  agree  to  the 
amendincnt,  as  it  i«  agreeable  to  the  oiurse  of  practice 
for  the  Defendant's  counsel  to  agree  to  such  amendments, 
and  as  the  amendment  proposed  will  put  the  Defendant 
untier  no  dillicnlties  witli  respect  to  his  defence,  it  being 
the  very  same  -afler  the,  anien>lm>'iit  as  now.  Prior  to 
the  late  decision  on  sealed  instruments  wiihout  a  witness, 
many  actions  had  been  brought  in  case  upon  them  ;  and 
upi'ii  the  reconunendatinn  ofllie  court  they  were  altered 
by  consent  to  debt.  The  Defendant's  counsel  would  not 
consent  to  the  amendment,  and  the  suits  were  dismissed. 
Note. — Vide  note  t<i  Cowperv.  Edwards,  ante  19. 

Robertson  v.  Stone. 

The  appellant  applied  in  time  to  the  clerk  (or  the  papers,  but  could 
not  procure  them.  The  papers  were,  hovuver,  brouphi  up  .('ter 
the  15th  day  liefore  the  ii  rm.  an'l  h  mo'ion  w:is  made  to  have  Ihem 
filed  Upon  I  lie  motion's  bt-inif  opposfd  by  tlir  uppellei-,  ii  was 
refused  upon  tlie  fj'round  that  the  party  had  his  remedy  8|;aiii9i  the 
clerk.  It  seems  if  1  litre  h;id  been  no  remedy  agnlnsi  thecleik,  the 
papers  mighi  have  been  filed. 

(402")  This  was  an  ap|)eal  from  a  veidict  in  Person  County 
Couit.  The  appellant  applied  in  time  to  the  «lerk  of  the 
County  Court  fur  the  jiapers,  liui  could  nut  pi-'icure  ihem. 
The  papers,  however,  were  brought  up  after  the  fif- 
teeiitii  day  before  tlie  term,  and  (he  appi'llanl  moved  to 
have  them  filed,  and  the  cause  placed  on  ilie  trial  ducket. 
And  now  at  tiiis  term,  the  appelh'ecame  i  i  to  shew  cause 
agninst  till  motion.  He  iti^isted  tli.it  it  the  a|i|i.-llant 
Could  not  procure  the  papers  from  the  clerk  of  the  County 


Haywood's  kepouts.  463 

Court,  as  lie  allpi^pd,  iliai  was  ii<i  reason  f(M>  settinj^  (|,p  Oct.  l"96. 
cause  I  nw  (l.iwi)  for-  dial,  as  tin-  art  oC  1777.  C.  2.  s.  87,  -^■^'"^~' 
liad  cxpresslj  pro>i(lt'(l  fur  such  a  rase  :  iv.n)'  1\,  tlim  the 
clei  k  hliimld  furleit  filtv  (kpiukIs  to  tlie  appillKiii,  aiul  also 
all  daiiirttfrs  siiTiained  h>  rr-nvdn  of  siirli  delnj'  or  rrliisal. 

Fer  curium — A  caMi-  lia|»|jeiird  sninc  liincaso  at  Eden- 
ton,  whidi  has  bc<i'  cilid  as  the  !;iomi<l  if  tliis  a|i|  lit  a- 
tiou  ;  in  lliat  ras<-  tlie  ap|ii'llanl  iffi  r^i'  iiis  njipial  |i;i(h-i'S 
to  till'  cl'  rk  of  ilic  Sii|i«iicii'  Ciiui  t  in  ihe  streets,  not  at 
his  ollice,  and  the  clcik  fm  th.it  reat'io  iffiised  (o  leieivc 
them,  .ippiplietidin_!i  he  was  not  bi<und  to  i'(ei\e  tiicm 
bin  ill  Ills 'ilKce  ;  aiul  (lie  rooit  ordered  tlie  .ppeai  papers 
to  he  iih-d,  heiiii;  ot'i'pitnon  (he  appellant  had  no  n  nied}' 
against  ^lie  clerk.  In  lliis  rase,  as  he  lias  a  remedy  |  'c- 
scrihed  by  law,  it  is  proper  he  sliall  pursue  that.  Were 
his  Case  siirli  as  shewed  hini  tu  liaxc  lieen  i;"'''y  "'"  "0 
nesriect,  and  a'  tlie  same  lime  that'  he  had  no  remedy 
against  ll|e  olUeer,  '.hi  i  out  t  wmild  sustain  I. is  ,il)peal  to 
prevent  a  failure  of  justice,  bni  that  is  not  the  present 
case. 

The  motion  was  overriilei!. — It  miulit,  jierhaps  have 
been  im|)iiiper  to  allow  of  filioc:  the  papers  h_v  way  of 
apiiial,  for  'liP  ;<ppellee  mijrht  liaxe  been  at  llie  office  on 
the  I5lli  da>  liefore  tei  m.  to  Uiinw  whether  they  were 
filed  oi  iHit;  but  qiiere,  il  they  iiiiijlif  not  have  been  liroiiijlit 
up  by  certiorari,  el  vide  ante,  Cliumbcrs  v.  Smith. 

NoTE^  Vide  Hard  V.  Orr,  .A".  C.  Term  Jiep.  151,  wliere  this  c.ise  is 
recogiiizetl  and  cuiifiimtd. 

Anon)  nidiis. 

Tlic //ten  (luys  before  tlic-  term,  in  wliich  appeiils  inukt  be  filed  in  llie 
Supeiii^r  Ciiurt,  nnu.st  bi-  clear  of  tile  dav  ot  filine;  the  jjsp'  rs.ind  of 
tlie  first  daj  i>f  tile  term:  at  all  events,  i;f  the  first   iiiy  uftlictcrm. 

In  this  case,  it  was  m^ived  by  General  Davie,  that  the 
appeal  shonlil  not  be  rpceixed,  tin  re  no!  lu'incj  fifteen  d.iys 
between  the  lilinj;  of  'he  ap]ical  pap.  rs  aiid  the  fiisi  ilay 
of  ti>e  111  .\t  term,  and  he  rited  2  /)/.  Rep.  922.  1  Sira. 
407 — as  a  similar  case  beinsj  founded  upon  a  cnle  of  cinirt,  > 
wlitcli  had  the  worils  •' .il  least,"  in  the  same  manner  as 
the  act  of  1777.  c/*.  2.  sec.  84,  win  re  the  expression  is, 
that  'he  rei  ord  of  the  suit  shall  be  ihlixered  to  the  clerk 
of  III!  Superior  (Joint,  at  least  lilteeii  d.iys  behne  the  sit- 
ting of  the  term.     In  the  case  in  Strange,  one  day  was 


464 


UAYWOOU'S    REPORTS. 


Oct  1796.  |,p]j  f„  Ijp  jiiciiisive  and  the  otiiPi-  cxrlusive  ;  and  if  that 

^^^^*^  ciiinpiiiari'in   prevail  in  the  pt'rseiil   iiistaiic<>.  tlic  i-erord 

(403)     xviis  ijion^lit  up  too  IhIc  :    fm-  there  are  not  filti-eo  days 

before  the  term,  unless  the  <la>  of  filing  and  the  first  day 

ol' the  t<'i'ni  are  both  inclmlei]. 

E  conira— Williams  riled  Sulk.  599 pi.  7.  2  Stra.  765. 
Per  curiam — Williams  abs<'nt.  Whether  the  fifuen 
days  ar'e  to  be  (rcnnnted  inrlusivc  or  exclusive,  depends 
not  upon  any  pianice  of  ihe  British  ro(irt~,  but  upon  the 
meaniiis;  and  desijjn  of  our  own  act,  which  seems  to  have 
been,  that  the  apjii-llee  after  coniin<  to  the  clerk's  office, 
and  fi'idin::;  ihi-  appeal  lod_^i'd  there,  ini^ht  have  fifteen 
days  for  travellio]^  to  the  most  distant  part  of  the  State, 
to  pror'ure  attendance  of  witnesses,  and  reuirniog  lo  the 
court,  and  io  otherwise  pre[)aring  for  the  ti-ial ;  but  if  the 
fifteen  days  are  to  be  accounted  inclusively,  lie  will  Wave 
but  tiiii  teei)  days  allowed  for  those  purposes.  The  fif- 
teenth day  is  employed  in  travellinj;;  to  toe  ofljcr  am!  get- 
ting process,  ami  ihe  fii-st  day  of  the  term  he  must  be  pre- 
sent in  court  icad^  for  his  trial.  If  we  allow  one  of  them 
to  be  inclusive,  and  the  other  exclusive,  ijieie  will  remain 
but  fourteen  days.  There  should  be  fifieen  c!>ar  days — 
at  all  events,  the  first  day  of  the  term  must  be  excluded. 
Tlie  case  was  itdjourned  to  search  for  pfecedent6  on  the 
application  of  the  appellant's  counsel. 

Note.— Oven-uletl,  Anani/mous,  post  462. 

State  V.  Briidley. 

The  indictment  slated,  that  Galling  sued  Eerndon,  a 
constable,  and  others,  for  selling  his  cattle,  upon  an  exe- 
culioii,  at  a  diff  rent  place  fiom  that  advertised  ;  and  that 
upon  the  trial  of  this  aciioo  in  the  (^)nnty  Court,  it  was 
a  material  question,  whether  Galling  interrupted  the 
constable,  in  driving  the  cattle  (o  Gatling^s  house  to  be 
sold  ;  and  that  the  Defeinlant  Bradley  was  introduced  as 
a  wi'ness,  and  was  swurii,  and  npoti  his  oath  deposed, 
thai  Gulling  ilid  not  interrupt  Mie  conslable  in  driving 
the  c:iti|e  i<>  Giillins;'s  house.  The  evidence  was,  that 
Defendant  ^Woie,  Galling  did  not  assist  in  driving  the 
cattle  from  th-'  officer — the  falsity  of  this  oath  was  suBi- 
cieollv  e-tabliHtied 

Haywooo.  Jiistiic. — I  doubt  whether  we  have  power 
to  say,  the  oath  sworn  by  the  witness  is  tantamount  to 


Haywood's  reports.  465 

that  imputed  him  in  the  indictment.  Wc  cannot  imply  Oct.  1796. 
that  one  thsiii;;  is  taiitiiinounl,  or  rquivalent  to  anotliff,  -^''•'~>^ 
in  iridiclmeois.  Wwv  ilic  Jndi^es  allowed  this  power  of 
implicati'in,  tliey  inis^ht  woeiiever  tliey  iliought  pi'opef,  ,.j,  .-^ 
Construe  the  ott'i-nco  proven  to  be  tantamount  or  e(|iiiva-  "^  •' 
lent  to  that  laid  in  the  indictment,  w  hm  accordins^  to 
strict  propriety  and  conimnn  accept, ince.  it  was  essen- 
tially diflTereiit ;  and  a  D  tendaot  wIid  had  |ire|iared  him- 
self to  falsify  the  cliar.tjc  as  laid,  mi.i^ht  find  himself  snp- 
prized  with  evidinre  cnnstrncfively  fantamoniit,  though 
not  propi  rly  and  strictly  applii'able  t'>  thatihargc.  I  do 
not  icCidlect  any  cases  up. in  this  head  at  present — iiotie 
Iia\e  been  cited — hm  this  Ciisc  seems  to  fall  under  the 
ojier'ation  of  a  general  principle,  of  vast  magnitude  in  a 
free  country,  wliere  the  law  is  to  govern — a  sacred  prin- 
ciple never  to  he  evaded,  nor  ever  to  be  thought  of  but 
with  reverence.  It  is  the  best  security  the  citizen  has 
against  judicial  tyranny.  I  hope,  therefoi'c,  the  \erdict 
may  be  so  taken,  as  tobriMg  this  p'dot  bci'iir-e  tiie  cmirt. 
In  all  other  respects  I  agree,  tliat  tiie  Del'mdant  ought 
to  iie  found  guilty.  He  was  found  goihj,  hut  the  verdict 
was  made  subject  to  this  point,  el  adjournatur. 

Note. — Vide  S.  C.  post  463. 

Kennedy  &  Co.  v.  Fairmaii. 

JPcr  WiLtiAsis,  Jii'Ige.  A  notice  to  talte  a  deposition  ought  to  be  ser- 
ved upon  vlie  person  oil  lie  othei' parly.  Haywood,  Judge.  Leav- 
iiiff  tlie  notice  at  the  residence  of  tiie  adverse  party,  is  a  sufficient 
service. 

Tiie  I'laintifiF  ofTeied  to  read  depositions,  and  proved 
the  notice  nf  iiking  tiiem,  to  have  been  left  at  the  jilacc 
of  abode  of  Fainnaii,  he  being,  as  it  was  said  by  the  fa- 
niiiy  with  whom  he  lived,  then  absent:  and  that  at  another 
time,  a  notice  was  left  at  a  house  in  Hillsborough,  where 
the  (lepiMient  s.iw  a  man  through  the  window  whom  he  bc< 
lieved  to  be  Fairman. 

Judge  Williams  (after  argument,  Williams  for  the 
IMaiiititf  and  IJaviedtv  the  Defendant) — The  notice  ought 
to  be  personally  served  upon  the  Uefendant — otherwise, 
a  man  might  contrive  to  leave  notice  at  the  house  nf  iiis 
adversaiy.  after  lu'  was  gone  upon  a  journey  ;  a.'"  '.^ke 
the  deposition  eiilioi-  belore  his  return,  or  so  soo.'  Jicr, 
as  would  put  it  out  of  his  power  to  repair  to  the  place  ap- 

i 


466  IIAYWOOU'S    KEPOUTS. 

Oct.  1796.  pointed,  and  (litis  deiirivc  liim  dC  tin",  bciiofit  of  cros9-c.\- 
^•^-^''^'^^  iiiiiiiii'i.;?  tlic  witness.  Tlic  iiisfanci'  pjivi-ri  .it  the  bai"  is  a 
prool,  tliat  \\v  should  hold  a  strict  h;iiid  ovcf  this  kind  of 
evidi-nce — ll»e  peiKr..!  inteiidiii.^  to  take  llic  deposition. 
Wailed  till  he  sa"  !iis  o[)piiiieiit  on  his  Joiii'iiey  to  New- 
York,  whei-e  he  'jad  vei-y  im|H)i-taiit  business -li)  transact, 
which  noeossaiily  innsl  detain  liini  beyond  the  time  spe- 
cified in  the  notice. 

J'ldi^e  Haywood — I  am  of  opinion  thq  deposition  should 
be  read  ;  what  is  siilficient  service  of  notice  in  otlier  ca- 
ses should  be  ileemed  so  in  this.  The  law  supposes  in 
other  cases  that  the  initicf  left  at  his  place  of  abode,  ac- 
C405")  t»'»"y  comi-s  to  his  kimwledge,  and  prnceids  against  lilm 
up'xi  that  supposition.  If  noiicc  to  a  jin'or  be  left  at  his 
placi-  ot  ab"de.  and  lie  does  not  attend,  he  siiall  be  fined. 
1779,  clu  6,  sec.  o.  So  of  a  witness,  1777,  ch.  2.  sec  36. 
Such  notice  of  a  declaration  in  ejcctinein  is  snlficienl — so 
of  a  subpoena  in  chancery  to  answer.  1  Harrison  iSX. — 
So  of  a  notice  in  chancery  to  fake  depusilions,  if  il  be  left 
at  the  place  of  alxidc  of  the  (ifipositc  party,  the  other  |iar- 
ty  may  jiroi  eeil  to  'ake  his  depositions,  and  they  will  be 
good.  S  flarrisoii  29.  It  may  indeed  soinitiines  bap|)en 
that  tlie  notic-  may  not  actually  come  to  the  party's  know- 
ledge, (  see  2  Shu.  1044  )  and  the  deposition  may  be  t&- 
kcu  e^- parte.  This  may  be  obviated  by  his  mo\ing  the 
court  10  postp  ine  the  cause,  upon  un  allidavit  of  the  no- 
tice having  not  come  to  his  knowledge,  till  he  call  have, 
an  o|)portunity  of  taking  the  deposition  of  the  same  wit- 
ness himself,  and  by  that  means  to  have  the  benefit  of  a 
cross-examination.  It  is  better  to  adopt  this  mode,  than 
to  require  a  notice  to  be  p>  rsonally  sei-ved,  and  to  throw 
a  lempiation  in  the  way  of  the  parly  t'»  conceal  himself. 
Kor  then  as  long  as  he  can  keep  out  of  the  way  of  person- 
al ser»  Ice.  he  defeats  his  antagonist  of  a  trial  ;  whereas 
by  allowing  a  service  at  the  house  to  be  good,  he  has  no 
such  temptation,  as  a  concealment  of  his  person  will  not 
hin<liM'  the  taking  of  the  deposition,  and  tliey  will  be  read 
when  the  trial  comes  on  in  i-oiirsc  ;  unless  upon  alBdavit 
he  can  shew  a  fair  cause  lo  the  court  for  a  continuance. 
If  we  lefjiiire  personal  notice  in  all  cases,  many  person* 
will  be  tempted  to  adopt  measures  to  prevent  the  service, 
of  it,  and  lo  hiiider  the  course  of  law  by  their  own  dex- 
terity. The  court  ditrenng,  the  deposition  could  not  be 
read,  and  the  Plainnflfwas  iionsnitcd. 


Haywood's  reports.  467 

Anonyinoua.  Oct.  1796. 

A  motion  to  dismiss  a  cause  brouglit  up  by  a  certiorari  waa  made  upon 
tlie  ({round,  In.it  the  notice  wiiich  had  bef-n  ordered  at  the  last 
term  to  be  given  ta  theUefendant,  had  not  been  i;iven;but  ilui>pear- 
ing  that  ihe  Defendant  had  entered  an  appearance  bv  iht-  initials  of 
his  attorney's  name,  being  placed  on  the  docket,  the  motion  was  re- 
fused. 

A  certiorari  had  been  obtained  for  Ihe  i-enioval  of  the 
recDi'ds  of  a  caiisp  from  a  County  Conrt  into  this  cdurt, 
reiofiiiiblf  the  term  before  last,  and  no  notire  of  this  cer- 
tiorari having  been  served  on  the  adverse  pariy,  the  roiirt 
at  th(  last  term,  ordered  such  noiice  to  issue,  and  at  Ibis 
tei-ni  no  notice  havina;  been  served,  t.'ie  Defendant  in  the 
certiorari,  by  Mr.  Duffy  his  attorney,  entered  an  iipoear- 
ance  in  the  usual  foini,  namely,  by  writioj"^  the  initials 
«f  the  attorney's  name  to  the  suit  nn  the  docket;  ;ititl 
now  Mr.  Huffy  moved  I'oi' a  disn)ission  of  the  cer/iorari  for 
want  of  iniiice  to  the  Defendant,  according  tn  the  rule  of 
the  last  term  ;  and  he  nr4;ed,  that  as  no  process  was  is- 
sued to  (i;ive  tnitice  liom  the  last  term,  that  was  of  itself  (.'*"*') 
a  discontinuance  of  the  whole  cause. 

Per  curiam — When  a  certiorari  U  obtained  to  remove 
a  cause  from  a  cmirt  below,  Ihe  adverse  parly  slinuld 
ha\e  lu)tic^ ,  to  the  end  lie  may  ajjjiear  antl  oppose  ihe 
motioti  for  a  new  irial  if  he  thinks  proj)er.  As  the  cnurt 
at  the  last  term  ordered  pi-ocess  to  issue  from  lliat  term, 
it  must  now  be  taken  that  the  cause  was  not  then  dis- 
continued— liad  it  bei  n,  no  such  process  wmild  haxcbeen 
ordei'ed,  but  a  disrontiouatice  woiiM  have  been  entered, 
or  a  procedendo.  Then  notice  slmuld  have  issued  from 
the  last  tirm  ;  and  it  jippears  imw,  that  no  |irocess  for 
that  purpose  has  actually  been  served  since,  but  the  De- 
fendant's attorney  has  entered  his  appearance  and  moved 
on  b'half  of  the  Di  fendant  for  a  dismission,  anil  'his  is 
proof  that  the   Defendant  had   notice.     It  is  al^ay-  so 

taken.      Vide  I  Strun.  261.   2  Stran.  1072.     Salk.  59 

The  object  of  iirocess  is  to  give  notice  to  the  Delendvnt, 
and  to  bring  him  into  court  ;  bui  if  hi  chuses  to  come  in 
Voluntarily,  that  su|»ersedes  the  necessity  of  process. — 
The  entering  the  initials  of  the  attorney's  name  on  the 
docket,  is  the  usual  mode  of  appearing  heie  pi  adi^ed, 
and  is  looked  upon  as  equivalent  to  his  having  a  power 
of  attorney  for  that  purpose,  signed  by  his  client,  as  prac- 


468  Haywood's  bepouts. 

Oct.  1796  tisetl  in  tlie  Englisli  courts.     Siicli  a  power,  and  an  ap- 
^■^■^'"^^^  jit-aiiiMce  ill  coiisoqiieiice  thereol',  is  a  waivei-  of  all  objec- 
tions i'lir  irrcgiilai'iij'  or  want  of  process,  if  the  adverse 
pHii^  cliuses  so  to  consider  it.    The  motion  to  dismiss 
was  refused. 

State  V.  Dickens. 

Ill  an  Indictment  for  extortion  in  taking  more  than  the  legal  fee,  it  is 
no  excuse  th.it  the  Uciendaiit  did  the  act  through  misiuke,  or  un- 
der inipri)|;er  advice.  An  indictment  tor  extortion  in  tlie  County 
Court,  stating  the  day  on  which  the  offence  was  committed  .n/i- 
gures  -nd  also  omitting  the  Word  extarsivtly  in  ch.irginj^  tlit  tak  ng 
the  unlawful  fee,  may  be  supported  under  the  act  of  1784,  R-  c.  210. 
It  is  not  iii-cessary  to  slate  what  the  lawful  fee  is,  in  an  Indictment 
of  this  kind. 

Indictment  for  extortion,  on  taking  eight  shillings  for 
a  guardian  bond;  and  not  guilty  pli-aded.  On  the  trial 
the  Dr.reiidaiit's  connsil  insisti'd,  rliat  arcnrding  to  the 
rate  iif  ffcs,  in  the  fee  bill  |)iiblislied  by  the  Secretary,  the 
clerk  is  entitled  for  ever^  ori!er  foreigii  to  a  cause  in 
court,  to  two  shillings  ;  and  for  every  guardian  bond  six 
shillings  :  altliougli  in  tlie  act  from  wlienie  the  extract  is 
taken,  he  is  entitled  for  every  guardian  bond  including 
all  services  thereon,  to  six  -hillings  only.  The  latter 
word-  were  omitted  by  the  Secretiiry  out  of  tlie  rate  of 
fees  (iiiblislied  by  liiin,  and  as  llie  clerk  might  have  been 
misled  by  the  rates  piiblislied  by  public  authority,  it  can- 
not be  said  he  took  the  excess  corruptly.  Also,  it  was 
proveri  in  this  ''ase,  lie  was  advised  by  an  old  practition- 
er thitt  he  might  demanil  eight  shillings,  before  which  ad- 
(407)  vice  he  only  took  six.  This  prmes  him  to  have  been  mis- 
taken ill  the  fee  allowed  by  law,  and  it  shews  the  inno- 
cence of  the  mistake  ;  and  if  the  jury  cannot  say  from 
the  ev  ideiicc  th<-3  hear,  that  he  did  it  extoisively,  or  with 
a  corrupt  or  oppi'cssive  motive,  they  cannot  pronounce 
him  giiiliy. 

Per  curiam — Williams  absent.  As  to  the  rale  of  fees 
pnblislieil  l)y  authoiilj,  and  collected  (roni  diifcrent  aits 
of  the  L.  sislature,  that  was  fur  the  benefit  uf  the  people 
at  large,  that  any  om  iniglit  know  at  once  by  inspecting 
tir  rates,  Alien  an  offiier  demands  more  than  was  his  le- 
g«l  fee  Ii  was  not  intended  to  (  hange  the  law — every 
oflii  er  is  hooiid  lo  knou  'vhui  the  \n\\  is  upmi  the  subject 
of  fees  to  be  taken  by  himself.     He  caiinut  excuse  himself 


maywood's  REPonxs.  469 

from  takin,^  more  than  the  leejal  fee,  by  sayinsf  lie  was  Oct.  1796. 
misled  by  the  rates  published,  or  by  the  advire  of  an  at- »-^'^'''**^ 
torney.  nor  by  any  other  exrnse  he  can  make.  If  siicb 
or  the  liice  excuses  were  admitted,  it  would  hardly  ever 
be  possible  to  convict  an  officer  of  extortion — lie  might 
always  contrive  to  (ground  his  coniluct  upon  inisap|irciien- 
sion  or  imitinper  ad»icf. 

The  jury  found  him  guilty.  Afterwards,  iiis  counsel 
moved  in  arrest  of  judgment,  and  assigned  sc\eral  tea- 
sons,  the  firincipal  of  whicli  were,  that  (he  day  on  which 
the  offence  is  said  to  have  been  comiiiiited,  Ih  stated  in 
figures.  Secondly,  that  the  receipt  of  the  eight  shillings 
is  not  laid  to  tiave  been  committed  extorsivcly.  Third- 
ly, that  it  is  not  stated  in  the  indictment  what  was  the  le- 
gal fie. 

Per  curiam — (Wiiliams  absent  and  the  counsel  agree- 
ing to  suhinit  it  to  the  di-cision  of  llie  Judge  in  court) — 
This  is  an  indictment  originally  found  in  the  County 
Court,  and  broughi  hither  by  appeal.  It  is  tiit-icfore  en- 
titled to  the  aid  of  the  act  of  1784.  ch.  31.  sec.  3.  which 
directs  that  in  all  criminal  prosecutions  thertafter  to  be 
had  by  indictment  or  presentment  in  the  County  Courts, 
it  shall  be  sufficient  to  all  intents  aii<i  purposes,  tliat  the 
bill  sliali  contain  the  charge  against  the  rrimiii',-.!,  expres- 
sed in  a  plain,  simple,  intelligible  and  explicit  manner; 
and  that  no  bill  of  indictment  shall  be  quashed,  or  judg- 
ment arrested,  for  or  by  reason  of  any  informalities  or 
refinements,  where  tiiete  appears  to  tl'-e  Coutity  Court 
sufficient  in  the  face  of  the  iudictmenl  to  induce  them  to 
proceed  to  judgment.  The  first  fault  pointed  at,  is  cer- 
tainly cured  by  this  act — the  meaning  tlio\igh  cxpresseil 
in  figures  is  as  well  known  to  the  court  as  if  it  had  been 
expressed  by  letters,  though  perhaps  an  indiciment  drawn 
in  this  court  originally,  might  have  been  vitiated  by  sta- 
ting the  day  in  figures.  As  to  the  second  (exception,  had 
the  indictment  been  originally  found  in  this  (ouit,  the  (aqr') 
omitting  to  charge  it  to  have  been  taken  extoi  sivcly  would  ^  ^ 
have  been  fatal,  the  precedents  all  being  that  way  ;  but 
having  been  drawn  in  the  County  Court,  we  have  only 
to  consider  whether  enough  apjiears  iipin  (he  face  of  the 
indictment,  to  point  decidedly  and  substantially  at  the 
sanii  circumstances,  as  is  expressed  I'.y  tl:e  word  exlor- 
six'ly.  It  is  staled  that  he  look  eight  siiilliiigs  fm  a  cer- 
tain service  by  colour  of  his  office,  and  for  wicked  gain 


47©  Haywood's  reports. 

Del  1796  sake.  Now  it  is  known  to  (he  judges  here,  as  beinp  part 
''•i^'''''^'-'  of  a  public  act,  ihai  eiglit  sliilline;^  is  above  the  le^al  Ceo 
f<ii-  that  s'Tvico  ;  it  ran  tlierefoi'e  appear  to  tlieni  in  no 
other  light  than  that  "fan  extorsive  taking;  ami  we  can- 
not say  under  the  act  telerred  to,  that  there  is  not  enough 
of  substance  to  enable  us  to  pronounce  the  nfFence  char- 
ged, to  he  that  of  extortion.  As  to  the  other  cxc«-ption, 
it  is  not  necessary  to  slate  wli.tt  is  the  lawful  fee,  even  in 
an  indictment  preferred  originally  in  this  court ;  if  no  lee 
was  dne,  thi'  indictinefit  says — wliercas  no  fee  whatever 
was  dm-  to  the  said  A.  on  that  aco'iunt.  If  not  so  much 
is  due,  the  indictment  stales — whereas  no  such  fee  was 
due  to  the  saiil  A.  on  that  account,  or  foi-  lh.it  service — 
ami  thi-  has  always,  in  times  of  the  great^'St  strictness, 
been  held  wi'll.  Bnt  the  attorney  for  the  Oei'endant  pres- 
sing to  have  time  to  sear<'h  lor  authorities,  and  Ibis  be- 
ing consented  to  by  the  Solicitor-General,  the  case  was 
adjourned. 

Note. —  Vide  2  Chilly's  Crim.  Lcnti '295.  where  it  is  sa'ul — "where 
nolhiiin  ai  all  w:is  due,  thai  tact  ouKhv  to  be  averreJ,  ncl  where  any 
thing  was  due,  the  sum  which  might  have  been  lawtuUy  taken,  must 
be  expressed." 

Keniieily  &  Co.  r.  Fairman. 

Ten  diiys  notice  n^ustbe  given  to  the  creditors  before  taking  the  in- 
solvent debt'ir^  oalh.  An  insolv.-n'  debtor  shall  not  be  discli:irged 
if  he  will  not  account  for  propirty  proved  to  have  bei  n  in  his  pos- 
session shortly  before,  and  sold  to  one  who  had  acted  as  his  psrlner 
in  trade. 

General  Darte  presented  a  petition  to  (his  court,  stating 
the  inipiis  mtu'iit  »{'  Fairman  at  th<'  suit  of  the  PlainlifT 
for  ihe  spitce  of  twenty  days,  and  prityrd  that  he  might 
■  be  admitted  to  the  oath  of  an  insolvent  driitor  and  dis- 
charged, and  the  court  appointed  a  day  for  him  to  be 
brought  up  ;  atid  now  on  this  day,  being  Ihe  last  of  the 
term,  lie  was  brought  into  couit  accordingly,  and  prayed 
by  his  counsel  to  be  sworn  and  disihaiged.  JJ/i.  Wil- 
liams olijected,  because  he  had  not  given  notice  to  the 
Plrtinliff's  agent.  «lio  lives  in  this  place,  ten  days  tielora 
the  present,  bill  one  or  two  days  notice  only.  It  will  be 
contendi'd  on  the  other  side,  that  ten  days  notice  is  not 
requii- li  by  the  art — the  first  clause  directs  noiice  in 
general  to  l)e  given  without  specifying  for  what  leugili  of 
time  ;  a  tjubsequeiit  part  says,  the  creditor  or  creditors 


Haywood's  reports.  471 

being  notired  acri.icli lie;  to  the  ilircctions  of  this   act.— 0«*- 1796. 

ThPM  ill  itip  l;iiiei'  part  of  tlic  ait,  s|m  nkiiit;  of  niidce  t<i  '•^"•''^^^ 

be  si\PM  wht'n  a  sdiedule  »\  eflferis  is  to  be   irndcifd   by 

thi'  (li'btiM,  it  (liicrts  ten  d  >s  iioiiie  tn  be  fjjivi  ii,  and 

thi'i  i**  ihe  part  of  tin-  act  fef»n-e(l  to  hy   the  words  (ac      (409) 

coidiiis;  to  the  dirertioiis  of  Iheari)  in  ilic  fiii-os:;'iiii;;  part; 

by  wiiirb  the  Legislature  meant  to  express   ten  days  iio- 

tirc.     It  wi's  ai'sned  e  contra,  GeiienU  Davie. 

Per  curiam — Notire  innstbe  .e;i»en  that  is  exfircssly  rc- 
qiiireil — if  there  is  no  le«i.e;tli  of  time  presriibul  in  the 
art,  it  ought  to  be  a  reasonable  time  ;  and  wiiai  is  a  rea- 
sonable time  rannot  be  lie'ter  iisiertaiiied  liian  by  lefer- 
riii!;  to  the  time  the  Legi-lature  lias  ;  [ipoinied  ill  a  simi- 
lar rase — ilie  latter  p-.irl  of  this  act  a|i|ioints  ten  days 
notice  to  creditors,  whose  deblor  is  about  to  deliver  a 
schedule  of  his  effeds — the  pr'-paralimi  for  these  iredi- 
lors  to  make,  is  no  greaier  than  tlic  preparation  lo  i»e 
made  by  those  of  tlie  otiier  class,  and  tlieiefore  as  long 
time  shonl'l  be  y;i\en  in  the  ww  case  as  the  od.er  :  hut 
ill  truth  this  act  does  provide  )hat  ten  days  shall  he 
given  in  the  case  now  biCore  the  conrt.  TIil-  Mne  inean- 
ingofany  written  instrnincht  is  liest  collerfed  frnm  a 
view  of  the  whole,  et  anfecea'nitibus  et  coiisequeiitibiis. — 
Notice  is  required  in  the  first  pait  of  the  same  clause,  in 
a  snbHequent  part  of  t!ie  same  clause  it  is  reqiiin  d  again 
with  the  addition  of  llie  words,  according  ti  the  direc- 
tions of  this  act  ;  and  by  the  latter  part  of  tlie  art,  nolice 
of  ten  da>s  must  be  given  )o  the  creditor  of  a  debtor 
about  to  deliver  a  schediiic.  We  are  if  possible  to  give 
every  word  some  ((perati\e  meaning,  bat  we  should  give 
no  meaning  at  all  to  ilv  words,  accordi  g  to  (he  direc- 
tions of  this  act,  if  we  say  they  mean  nothing  inme  iban 
the  pnceding  words  had  expressed,  in-  notice  in  general. 
Indi'ii,  according  to  tlie  constriiciion  of  tlie  petitioner's 
counsel,  the  whole  of  tills  sentence,  so  far  as  it  i-e- 
lates  III  notice,  is  nugatory — notice  having  been  di- 
recti'd  betore.  Something  umrc  ihirefore  must  be 
me;int  by  the  additional  words,  according  to  the  <lij-ec- 
tions  of  ihis  act — it  lias  rcferenee  to  what  is  expressed  in 
some  oiher  part  of  the  act,  having  another  meaning  tliaii 
that  part  of  the  sentence  to  whi<li  the  words  are  addi- 
tional, and  that  must  necessarily  be  the  tirie  often  days 
expressed  in  the  hitler  [lart,  by  a  reterence  to  v\|iicli 
lhe.se  words  lia\e  an  i  (leci  -md  meaning,  and  coiniiiele 
the  sense  of  the  first  clause  directing  noticn,  which  other- 


472  HAYWOOU'S  KEPOUTS. 

001.1796.  ^yjse  would  bt>  inrom|ilitp  and  uncertain  for  want  of  de- 
'^'^'^''^^^  filling  ilif  time — therefoie  the  acts  provides  ten  days  no- 
tice to  be  given  ;  it  lias  not  been   given    in    (he   pn'sent 
case,  and  the  petitioner  cannot  be  discharged.     So  he 
was  remanded. 

At  April  term,  ITQ?.  anntlier  person  presented  liis  pe- 
tition to  the  court  by  Robert  Bell,  his  attorney,  to  be  ad- 
t^lOj    mitted  To  the  oath  of  an  iisolveni  debtor  and  discharged, 
but  he  iiad  not  gixen  ten  days  notice. 

Et  per  curinm — Haywood  and  Stone — Tliat  is  neces- 
saiy  by  the  spirit  of  the  art.  and  they  remanded  him. 

Note. — Fairmitn  petiiii.netl  Jud)f<  Haywoou,  mi  tlie  vacmion  tbl. 
lowing  this  ifini,  who  granted  an  habeas  corpus,  and  Fairman  was 
brouffht  before  him  and  tlie  notices  uere  admitted;  bui  it  being 
provi  (1  thst  not  long  hefon- these  judgments  olitained,  f'lr  which  he 
was  imprisoned,  he  Tinl  sfiM  property  to  the  amount  of  eleven  hun- 
dred pounds  to  one  Coj-A/in;  who  it  was  proven  h;.d  subsciibed  re- 
ceipts and  taken  notes  as  llie  partner  of  Fairman,  and  it  beiii);  also 
proven  that  Fairman  w:.s  present  wh -'i  minuy  whs  lent  by  Coghlin, 
an<l  :i  note  taken  in  the  name  oi Fairman  and  Coghlin,  tlie  .liidgi-  re- 
quired him  to  shew  the  application  of  that  money  ;  and  he  beings 
not  able  to  do  so,  nor  willing  to  attempt  it,  though  a  month's  time 
was  offered  him  fortliat  purpose,  an  Itniit  he  should  be  again  broug^ht 
up  at  the  end  of  the  month,  he  was  remanded. 

Note. — Vide  the  act  of  18i!2,  c.  ■'',  which  prescribes  that  no  person 
sIihII  be  imprisoned  upon  any  ca.  sa-  for  any  debt  romracted  after  the 
lit  d;iy  of  May  1823,  who  will  comply  with  the  requisites  of  the  act, 
without  fraud  or  concealment. 


FAYETTEVILLE.  OCTOBER  TERM,  1796. 

Wilcox  T.  Ray. 

A  copy  of  a  record  should  be  verbatim,  and  not  be  certified  by  the 
clerk  tiiat  such  Ihlnts  appeared  to  him  fn.m  the  record  Thu  loss 
of  a  record  must  be  proved  by  the  oath  of  some  person,  and  not  by 
the  cei  tificale  of  the  clerk. 

Ejectment.  The  PlaintifTstated  his  title  to  be  derived 
under  Simpson  the  patentee,  against  whimi  the  Slate  re- 
covered a  judgiiteiit,  njioii  which  execution  issued,  and 
the  land  in  qucstimi  was  sold  to  him  to  satisfy  it,  on  the 
25th  November,  1768.  He  produced  the  patent  to  Simp- 
son, and  offered  what  he  called  a  copy  of  the  record  of  the 
judifineiit  and  execution.  It  was  a  certificate  of  the  clerk 
sett'  u:  f  ii'tli  Ilia'  it  -ippeareil  to  iiim  from  die  di><  ket,  that 
a  judgment  had  been  entered  for  so  much,  and  that  an  ex- 


HAYWOOD  S  KEPOUTS. 


473 


ecution  had  issued,  and  thai  the  rest  of  the  record  except  0=*-  ^''^S- 
what  ajipeaied  upon  the  docket,  was  lost.  .Vr.  Moore 
objected,  tliat  as  to  Ihat  part  of  the  lecofd  which  was  lost, 
if  it  were  a  fact,  it  should  he  proven  by  some  person  on 
oath  ;  the  clerk  not  heins  appoinleil  by  law  to  certify  the 
loss  of  a  record,  his  certificate  upon  the  subject  was  of 
no  consequence,  and  as  to  those  parts  cf  the  recojd  which 
lie  had  certified,  thej  could  not  be  received — for  he  had 
only  given  a  liistoiy  of  the  record  as  it  .ppeared  to  him, 
whereas  the  very  words  shouhl  be  copied,  ihat  the  court 
might  jiidj^e  of  the  true  import  of  it.  Tlie  clerk  may  mis- 
take the  meaning  of  the  eniries,  and  draw  improper  <  on- 
clusioiis  ficim  them.     And  of  tliat  oi)inion  «as  ihe  court, 

nd  refused  to  receive  the  certificate,  and  the  Plaintiff  was 
nonsuited. 

Hots.— Vide  Shite  v.  Nurman,  2  Dev.  Bep.  222. 

Park  V.  Cochran  and  others. 

Ejectment.  The  Plaintiff  stated  his  title  to  have  been 
derived  under  a  patent  to  J\''etvberry,  who  conveyed  to 
Carrol,  and  Dyer,  who  conveyed  tD  the  Plaintiff.  He  of-  (411) 
fered  to  produce  an  office  copi  of  the  deed  from  Carrol 
and  Dyer;  Mr.  Williams  otijectcd  to  the  reading  cif  it, 
unless  Ihe  Plaintiff  would  swear  he  Iiad  not  the  original 
1  liis  possession  or  power. 

Per  curiam — Ihe  copy  cunnot  be  read,  unless  the 
Plaiiililf  will  swear  he  has  not  the  original  nor  can  pro- 
cure it.     The  Plaintiff  was  nonsuited. 

Note.  —Vide  Blaiilon  v.  JMiller,  and  notf  thereto,  ante  4. 

Evans  v.  Norris's  Adininisirators. 

An  .iccount  ag.iiist  the  Plaintiff  cannot  b«  given  in  evidence  under  tlie 
ple.<  nf  puyment.  A  retainer  m  .y  eitliri' De  pleaded,  or  piven  in 
evclence,  U' iliT  thi:  plea  oi  fjlene  adraiidstravit.  Vii  admi:ii«trator 
is  buiind  to  pay  debts  already  clue,  Defore  ilu.se  i.ot  yet  payaiile.  An 
adniiiiistr.it. ir  cannot  retain  igiinst  debts  of  superior  dii^njty.  Vo- 
lui'tary  p.vments  afiertlie  teste  of  the  writ  are  not  allowaljht  ;  they 
are  certainly  not  if  made  after  plea. 

Case.  General  issue,  payment,  AnAplcneadmimslravit, 
pleadeil.  In  support  of  the  plea  of  pHymeot,  ilie  Defen- 
«lant  offered  an  account  which  the  intestate  had  against 
th'-  Plaintiff. 

Per  curiam — The  account  against  'he  Plainnlf  cannot 
be  admitted  to  prove  the  plea  of  payment,  the  Defendant 


474  ilAYVVOOo's    UEPOKTS. 

Oct.  1796  slxxilil  iiave  pleaded  the  (;i-nri-al  issue,  wiili  a  notice  of 
^^^""'^^^  set  oil';  then  (lie  FirtiiitifT  would  have  been  made  ac- 
qiiaiiiicd  with  the  paiticuiar  items,  and  niij^lit  have  prc- 
p.iied  hiniselt'  with  evuiriice  t.i  contcNt  ihem.  If  we  al- 
low an  account  to  he  proved  without  heing  pleaded  in 
bar,  or  notice  of  !,e!.  off  jciven  to  the  I'lainiiff,  he  must 
neces.sai'il^  be  iin]irepared  to  contest  if,  however  errone- 
ous II  may  be.  If  Such  ■.•.ccoiints  by  rules  of  the  C(nnmon 
law.  w'erc  adducible  by  the  common  law  to  prove  the  plea 
of  piiynieuf,  it  was  uiinecessarj  to  have  made  the  arts 
for  setiinpf  off  mutual  debts  and  accounts  aj;.uu''t  each 
otiicr.  The  account  was  rejected.  The  Defeudant  then 
proved  the  intestate  had  piirchiistd  a  house  of  him,  and 
agreed  to  give  three  hundred  puunds  for  it,  to  be  paid  by 
three  yearly  iustalouMiis  j  one  of  which  payments  was 
due  before  the  instilution  of  tiiis  action,  and  that  he  hud 
retained  an  hundred  |»(ninds  of  the  intestate's  estate  in 
^  his  hands  to  satisfy  it.  Jlr.  Hay  uri;ed  thai  a  retainer 
could  not  be  given  in  evidence,  unless  it  had  been  pleaded. 
Mr.  Tayhr,  e  contra,  insisted,  that  a  ret:uiier  m«y  be 
given  in  evidence  under  the  plea  of  plene  admiiiistravit. 
and  I'ited  Esp.  249. 

Per  curiam — A  retainei-  may  be  either  pleaded  oi'  given 
in  evidence  under  the  ph-..  ui  plene  administriivit.  3  Burr. 
1380.  Had  the  administr^tior  p  id  a  drhl  of  an  hundred 
])0iiiids  to  a  thir<l  pers'ii,  he  might  certainly  liave  given 
it  in  evidence  under  the  |)lea  of  pioie  Hdministravit ;  and 
payment  111  himself  is  in  Ihe  same  sitii.ttiou — there  is  no- 
tiiing  to  differ  the  two  cases.  The  evidence  was  given  as 
to  the  other  two  hundred  pounds  not  vet  due.  Jlr.  Tay- 
(412)  lor  argued,  that  tlie  same  was  a  debt  dif  in,  presenti  at  the 
death  ot  the  intest.ite,  and  Ml  it  tiie  adininisti  itor  imme- 
diately upon  the  death  ofihi-  intestate  was  entitled  to  pay 
himself  in  preference  to  another  creditor. 

Per  curiam — \n  executor  or  administrator  is  bound  to 
pay  those  dehts  that  are  already  due,  in  preference  to 
those  noi  yet  payable.  Off  of  Ex.  142.  14J.  The  De- 
fendani  next  proved  scvrral  payments  made  afier  Ihe  date 
of  t'le  leading  process  in  this  suit,  and  .several  after  the 
pit .'  It  ed. 

Hay — .\s  to  ihe  one  hundred  pounds  due  at  the  time  of 
the  ii  testate'-*  cle.<th,  I  admit  the  admiiiis'rat'>r  may  re- 
tain that  sum  to  satisfy  his  own  demand,  in  preference 


Haywood's  kepouts.  475 

to  any  other  croditor  of  llic  same  dcn^ree  with  himself,  or  Oct.  1796. 
of  ail  inferior  dcgrre.  By  the  ai-t  of  ir86,  ch.  4.  sec.  2,  '•^""''^^ 
notes  of  hand,  and  liquidated  and  seltird  arrnunis  signed 
by  the  debtnr,  are  jnit  upon  the  same  fnnting  with  res- 
pect til  payment  by  executors  or  administrators,  as  debts 
due  by  sprcialty,  and  our  demand  is  i^rounded  on  a  note 
of  hand.  Bond  creditors  liave  always  been  entitled  to 
be  i)ai<l  in  preference  to  simple  contract  creditors.  Esp. 
248,  25a,  sec.  4.  The  hundred  pounds  attempted  to  be 
retained  is  due  by  simple  contract  only,  and  cannot  as  I 
coiitriid,  be  retained  io  thcprejudicc  of  the  PlaintifT,  whose 
demand  is  equal  iti  point  ol'diirniiy  to  a  specially  debt. 
As  to  the  voluntary  payments  made  after  the  date  of  the 
sci.  fa.  they  do  not  support  the  plea  of  plene  adininistra- 
vit — one  essential  part  of  ihat  plea  b^  iii.;^.  that  on  the  day 
of  sinn.y;  out  the  original  writ,  or  at  any  lime  aft-rvvanls, 
the  Defendant  had  not  in  his  hands  to  he  administered, 
any  part  of  the  g.iods  or  effects  of  the  intestate.  A  proof 
of  jiaymcnt  made  after  that  day.  is  so  t.ir  from  being  a 
proof  of  the  plea,  that  it  proves  there  were  assets  to  the 
aniouni  of  the  |)aynH'nt  at  least,  in  the  hands  of  the  ad- 
ministrator after  the  teste  of  the  wcit.  In  all  events, 
such  payments  as  were  made  after  the  plea  pleaded,  can- 
not bo  recei\ed  to  support  it  :  the  plea  mnst  be  true  at 
that  time  or  it  will  not  be  of  any  avail  to  ihe  Defendant. 
It  must  be  true  at  tliat  time  at  least,  thai  there  were  no 
assets  in  the  hands  of  the  administratoi',  to  be  adminis- 
tereil. 

JiJi:  Taylor,  in  rejdy — If  an  executor  has  no  notice  of 
a  bood  debt,  he  may  pay  a  simple  contract  creditor  ;  and 
that  notice  must  he  given  by  an  action  actually  commen- 
ced. He  may  pay  himself  before  such  notice,  as  well  as 
he  may  pay  another  creditor,  otherwise,  the  executor 
would  be  ill  a  worse  situation  than  another  creilitor,  and 
in  that  situation  the  law  in.  ans  not  to  place  him.  No  no- 
tice of  tlie  note  now  sued  upon,  was  given  to  the  admin-  (413) 
istrator  before  his  retainer  of  this  hundred  pminds.  As 
to  tlie  payments  made  after  the  teste  of  the  writ,  and  be- 
fore the  plea  pleaded,  they  are  surely  to  be  all.tv\ed  to  the 
administrator;  [<tv  tlie  writ  may  be  taken  out  and  lie  in 
the  Sheriff's  hands  many  mouths,  before  any  notice  of 
it  be  had  by  the  administrator.  It  would  be  excessively 
uii.jnst  to  disallow  payments  made  fairly  and  innocently, 
before  any  notice  had  of  a  debt  of  superior  dignity.  It 
60 


476  Haywood's  reports. 

Oct.  1796.  was  Irtli'ly  (Icridrd  at  Wilmington,  at  the  last  term,  that 
'■■•''"'^'**^  tiu'  i'La  of  I'lillv  ailmiiiistfied,  rehtird  only  to  the  liincof 
tlic  ploHiling,  and  that  if  iIk-  adiiiiiiisitatoi-  had  fully  ad- 
itiiiiisi> mm!  at  ihat  limf,  it  was  suftirii-iit. 

Permrium — An  ext-cutor  or  adiniiiisti-atoi'  can  only  re- 
tain to  ^latisly  his  own  demand,  vvheii  it  is  of  ((jual  digni- 
ty with  ihiii  of  tlie  creditors  to  whose  disadvantage  it  is 
retniii'  d — as  the  exccuroi'  cannot  sue  himself,  he  is  allow- 
ed to  |MV  himself  by  retainer.  The  law  in  his  favor  pre- 
sunieN,  ihit  h^d  lie  not  been  executor,  he  w«nild  lia\e  used 
equal  diligence  with  any  other  creditor  to  procure  pa>  ment, 
and  |)l  res  hini  with  respec  t  to  paying  himself  in  ihe  same 
siiuation  as  it  he  had  used  tiie  inos<  expeilitiouK  diligence ; 
hui  he  cannoi  retain  to  satisfy  liimsi'lf  MJiilst  there  are 
(leliis  of  a  superior  dignity  lo  his.  By  the  act  of  1786, 
notes  are  pot  upon  tne  s.tme  footing  with  bonds,  and  are 
made  supei  ior  to  an>  simple  contract  debt,  where  liie  debt 
is  mil  liquidated,  and  scaled  and  signed  by  the  pariy  to 
be  char;;ed  ;  ol  course,  tlie  di  bt  due  in  ihe  present  case  to 
the  admiuistratcn',  cannot  be  sarisfied  liy  retainer  in  pre- 
ference to  till  debt  ot  the  Plainlift".  which  is  by  note  of 
hand.  As  to  ihi'  voluntary  payments  made  sin<  e  the  teste 
ol  the  V.  rii,  and  i)efore  tiie  plea  pleade<l,  in  strictness, 
Ihey  aie  not  allowable  ;  ihough  itideed,  il  seems  to  be  a 
harrlship  that  payments  made  before  notice  of  ilie  writs, 
«nd  with  no  design  to  prejudice  the  Plaintiff,  slnmld  not 
he  allowed.  As  to  the  (taynieiils  made  after  the  jjlea  plead- 
ed, Ih'y  are  clearly  not  allowable. 

Note— Tliui  part  of  the  court's  opiiii:in  relative  to  the  payments 
Tnuile  alter  t..c  tesie  andbi-fuiv  the  pi'  •,  serins  not  to  be  coireit ;  the 
law  as  laid  d..wn  in  the  Off  of  Ex.  145,  146,  is,  tliat  the  executor  may 
pay  aniilher  creditor  ..litr  suit  coiniiidiced,  belore  iie  luiye  notice,  and 
Tn  y  then  plead  that  he  was  not  sumnioiied  till  sucii  a  day,  before 
wliicii,  he   had  liilly  udmiiiislered. 

Note.— ttTpnn  the  first  point  decided  in  this  case,  see  McDowell's 
ailmr'i.  v.  Tate,  1  Dev.  Rep  249,  in  which  it  w  s  Held  that  an  accoui.t 
.signed  bj  oiu  Willi  anulher,  whose  bond  the  first  holds  for  a  larger 
amount,  should  be  left  to  ihr  jury  as  evidi  nee  ot  a  payment  on  the 
boi.d.  With  riS|)ect  lo  the  payment  ol  debts  and  of  retainer  by  ex- 
ecutors and  adiriinisl  raters,  thi-  liW  of  this  state  has  followed  the  Kiig- 
lish  law,  excej.t  that  notes  of  hand  ami  liquidated  accoinits  sign.d  by 
the  debtor,  are  put  U|Hiii  thi  same  l'ootini<  with  specialty  di  bis.  l\y 
Tet.icnce  to  ToUer's  Law  of  Execulurs,  it  will  he  fnund  liiat  all  puints 
adjtidf(ed  ill  tins  c.se,  art  sanctioned  Dy  the  English  authorities,  ex- 
cepi  t'iiat  :lic  position,  Uial  administrates  and  execut  ts  are  l.ixiiid  to 
p.iy  debts  already  due  in  preference  'o  those  not  yet  payable,  .squall- 
lied  Ijy  coiifiiiing  It  to  debts  of  equal  di^'nity  )  and  thai  .Iter  a  suit  is 
cominenced  the  adm'v.  or  ex'r.  may  pay  any  other  oreditor,  before  lie 


Haywood's  eeports.  477 

has  notice  of  the  Plaintiff's  .lemand.     Iivk-  (J,  Haywood  the  Eeporter,  Oct.  1796. 
add-  -.'  quitre  'o  t\iU  li-'t  point,  hoth  iii  tlie  pn   <■  p;il  i-  '-i-  an  i  i"  Swv.  y^^-v^ 
Partners  of  McNaughton  &  Co-  v.  Blocker's  ailm'r.  post  417 — und  the 
auilioiities  upon  winch  iie  rehtsai'-  rt.  i.  rnz.  •>  in  ilie  feuiisi.-  above 
referred  to.     See  Toller's  Law  of  Executors,  from  281  to  297. 

Peai'le  v.  Fiilsom. 

A  ilischarge  under  the  insolvent  debtor's  act,  ordereil  hy  the  proper 
ofhcfrs,  will  be  pnsumed  lo  have  been  resul.rlv  dmie,  until  tlie 
coutrai'y  be-  shown.  Undei'  the  firt.1  insolveiitact,  th'.-  Defendant  was 
disch  ;igi'd  only  as  to  those  who  liail  commenced  suits  against  him, 
and  had  notice  ,;iven  them  of  the  debtor's  petition. 


Covenant,  for  rertifiratcs  wliicii  Dcfpiulant  horrowed, 
and  agieetl  to  letui-ii  or  pay  for  jm  inmiej'  ai  llie  rate  of  4 
shillitii^s  ill  thi-  pound.  AniongNt  other  pleas,  the  De- 
fendant pli'aded,  that  lie  !iad  been  disrharj^ed  of  the  action 
under  tlie  insolvent  delitnr's  act  He  produred  a  peti- 
tion settin_^  forth  liis  iniprisonniont  at  the  suit  of  iini.ilic;» 
creditor,  asid  pinyini;  tin-  benefit  nf  liiat  act,  1773.  c.  4. 
He  also  |)ro(liu:ed  the  return  of  the  goaler,  by  wiiieh  it 
appears  lie  was  in  also  at  the  suit  of  the  present  Plain- 
tiff. He  also  produced  the  subsequent  iiroceedings,  shew- 
ing his  having  taken  the  oa(h  prescribi'il  in  tlia'  net.  unci 
his  having  been  discharged.  It  was  aigncd  on  lli  oilier 
side,  thai  he  ougiit  also  (o  itrodiuc  the  iiotiee  served  on 
the  present  PlaintiGT.  of  liis  being  abmit  to  take  the  hi'iiefit 
of  the  act — live  evidenre  ofljen-d  did  nolaiJiouiit  to  a  proof 
of  notice.  It  was  answered,  that  Ihi- giving  of  iio!it:e,  is 
a  circumstance  incident  to  the  business  of  his  discharge, 
and  must  liave  been  proved  to  the  Jns'iees  nf  t!ie  Peace 
before  they  proceeded — since  they  have  tUscharged  him, 
the  court  here  will  presume,  that  all  things  picpaiatory 
to  his  discharge,  were  i-iglitly  and  legally  iransacted,. 
and  they  cited  Bull.  JVisi  Fri.  ]73. 

Per  curiam — Since  there  is  a  dischai-ge  ordered  by  the 
pvoper  oIKcers  of  justice,  we  will  presume  all  ciicum- 
stances  required  by  law  lo  precede  the  discharge,  to  have 
been  regularly  observed;  otherwise,  we  niiist  prcsiiine, 
that  the  Justices  have  acted  illegally  :  which  is  a  jire- 
sutnptioii  never  entertained  iigainst  the  proceedings  of. 
oflicers  of  justice.  W  in  fact  they  have  proceeded  to  dis- 
charge without  notice,  and  the  creditor  will  she\s  thai,  it 
will  vitiate  the  proceedings.  Tlir  presuiiipiioii  oi' omnia, 
rede  uda,  lasts  onlj  until  proof  ol  the  comraiy  appear;. 
but  we  will  not  require  the  Defendant  to  prove  notice  to 


(414) 


478  Haywood's  bepouts. 

Oct.  1796.  have  been  given,  the  PlainiiflT  not  beinf»  able  to  shew  any 
^^"^'■^«-'  iriea;"la'''*J  '"  tlie  proceedings.     There  was  a  voidict  for 
the  b«f,  iidant. 

One  other  point  was  moved  in  this  cause,  namely, 
whether  the  Defendant  by  a  di'-cliarge  under  tlic  first 
branch  of  the  act,  was  discharju'  d  as  to  all  creditors,  or 
as  to  such  only  wiio  liad  instituted  suits  against  him  at 
the  time  of  his  inipiinonment. 

Et  per  ciirinm — Clearly ,  before  the  late  act  which  has 
made  sonic  alteration,  he  vas  discharged  only  as  to  such 
creditors  v\ho  had  ronimenced  their  suits,  and  had  notice 
given  tiiem  ol  the  debtor's  petition. 

Note. — Vide  Burton  v.  Dickens,  3  Miirph.  103.  Iloitinvil  v,  Paiteiir 
&  Price,  Ibid.  270.     Jordan  v.  James  &  Marsliall,  3  Hawks  110. 

Hodges  V.  Blount. 

Properly  sold  remiiinlnf;  in  the  possession  of  the  vendor  where  there 
is  !in  absoliilf  bill  ot  sale,  is  evidence  of  tiaud:  so  is  the  not  reris- 
tering  the  bill  of  sale  till  lung  after  it  is  made,  coupled  with  an  oner 
on  the  part  of  the  vendor  to  antednte.  ^ 

The  16th  May,  1789,  LassUer  sold  to  the  Plaintiff  the 
iiegw)  in  question.  Lasiiter  dii  ived  his  title  under  Lucas, 
.  .  who  made  a  bill  of  sale  tM  Raifford  on  the  lOtli  of  August, 
^'*'^'  1788.  The  Delindant.  niouul,  who  in  fact  acted  for 
Wt)rseley,\v\ii>  was  the  leal  Defindant.prinhictd  a  bill  of  sale 
from  the  same  Lncns  to  Worsclexj,  dated  the  5th  of  March, 
1788.  It  was  |)r<i\ed  Rayford  \:;n\c  a  valuable  conside- 
ration. No  consideraiinn  un  the  part  of  ff'orseley  was 
proven,  and  the  negro  was  in  possession  of  Lwcas  on  the 
5th  of  Match,  1788  :  Lucas  having  been  sued  and  given 
bail,  they  were  about  to  siii-render  him,  and  tliat  he  of- 
fered to  give  tiiem  a  bill  of  sale  for  the  negro,  and  to  an- 
tedati   it  so  as  to  give  it  a  prefeience  to  liayford's. 

Fer  curiam — li  is  alleged  thnt  the  (till  of  sale  to  H'orseUy 
is  fiaudiilent,  and  if  it  is,  the  law  says  it  is  void.  It  is 
not  sufficient  hdwevei-  to  allege  fraud — it  must  be  proven 
citliei'  positively  and  direcilj,  or  bj  ciirumstances,  which 
is  the  most  ustial  way,  there  seldom  being  any  direct 
proof  tif  fraud  to  be  hiid.  There  is  no  positive  proof  of 
fratid  on  the  part  of  ff'orseley,  hut  circumstances  tend 
that  w;iy  :  he  diti  not  take  the  mgro  into  possession,  he 
remained  with  Lucas,  tliotigh  the  sale  purports  to  be  an 
absolute  one.     'i^Q  other  evidence  offers  any  substantial 


Haywood's  keports.  479 

reason  in  explanation  of  iliis  oircumstrtiice.     Lucas  also  Oct.  1796. 

kept  (xisscssiiiii  aCtcr  the  bill  of  sale  to  Ray  ford,  hut   the  -^"^""^^ 

cause  of  litis  is  rxjilaiiipd.     It  i>.  not  pfintti  ih.  t  ffnvselcy 

gave  any  \altiable  consiilei'ation,  Ihonj^h  it  is  pio\>'d  on 

the  paiM  lit  Ray  ford.     W^orsWej/'s 'h-c<l  llioUi:;h  pm-porling 

to  be  dated  so  iont^  bifoic  Bayford's,  is  not   adiiiittcil  to 

registiatiou  till  aflei- ;  whidi  cii('(inisi,.Mce  adilcl  t"  Uie 

proof  of  Z,?/caA's  offefini;  (o  antula  e,   if  his  b.nl   WMuld 

not  siirienilei-  him,  weighs  soniethinic.     The  jiiiy  found 

foi'  the  Flaintifl',  and  tla  re  wa>  ii  inotion  for  <t  new  trial ; 

but  the  court  being  satisfied  with  the  veidict,  refused  it. 

Note. — Wiiere  the  possession  does  not  a'-.c<  inpany  and  frill:)w  the 
titli^,  ih£  tr:iis;iction  is  (raudiiltfM  in  law.  Gait/icrv.  Muwfortl,  JV.  C. 
Tei-m  Hep.  167  But  sveral  cases,  boili  before  ;iml  ailti  'hit  •■  se 
hold  i.i  -t  SMcli  piss,  -sioii  is  only  evidence  of  tiaiid  ;  set-  Cox  v  Jack- 
son, fiost  423.  Ingles  v.  Donaldson,  2  Hay.  67  l'ick\.  Kevs.  Ihiil.  126. 
Falkiierv.  Perhiiis,  Jbid.  2-2i  Hull--.  IJtaiieij,2  .iturpli.  I7i.  Tr>.Her\. 
Ha-ward,  1  Hawks  320.  Smith  &  Stanhj  v.  JSiel  6?  atliirrs,  Ibid.  Ml,^- 
Ho-^ell  V.  Elliott,  1  Dev.  Hep.  76. 

Aiionyraotis. 

Mr.  Hay  produced  several  executions  which  had  been 
deliveretl  ti>  the  late  Slierift' of  Anson,  wlio  had  returned 
levied,  and  no'  sold  for  want  of  bidder.s.  Also,  se'veral 
writs  i\^ venditioni  exponas  tsstii*<l  upmi  tliese  returns,  and 
stated  that  the.se  latter  writs  were  put  into  the  hands  of 
the  late  Sheriff  before  his  going  out  ot  oiFice,  ami  to  the 
pri'sert  Sheriff  he  had  not  pointed  out  any  projicrty  which 
he  Could  sell  acrordirig  to  tiip  exigence  of  the  writs.  He 
ino\ed  that  the  I  ite  Slierift"  shoultl  be  amerced,  under  the 
act  of  1777.  ch.  8,  see.  5. 

Per  airiain — Let  iiim  be  amerced  ;  he  ought  to  have 
made  a  return  tu  tiie  writs  nf  venditioni  ea:ponas  ;  he 
oughi  to  have  sold  ihi'  property,  thoogh  no  writs  of  veil-  fA,f--<. 
(ii?iu7ij  fa'/toJMis  had  issued  :  and  having  once  taken  it,  he  '^  ' 
cannot  alteiwanls  put  it  iiptui  the  new  Sheriff  to  execute 
these  writs.  Let  there  also  issue  writs  ol' liislringas  to 
the  new  Sheriff,  to  compel  the  lat(?  Sheriff  by  distress  to 
to  le\y  the  monies,  and  deliver  them  to  the  new  Sheriff, 
to  be  l)roiight  inio  ronrl. 

Note. — Vide  Gov'r.  to  the  use  nf  HolUday's  cxr's.  v.  Eastwood  ef  a!.  1 
Sev.  Sep.  157. 


480  Haywood's  kepokts. 

Oct  1796.  Anonymous. 

WUcre  the  act  of  limitations  begins  to  run  against  a  fame  sole,  her  mar- 
rying ivill  not  -uspend  i;s  operation. 

This  was  a  sperial  verdirt,  in  «liinli  rlie  qii-stion  was 
statid  to  be,  wliciln-c  a/eme  sole,  ^Rainst  uhoni  the  act 
of  liini'atiniw  hail  begun  tn  inn,  could  by  nianyinjs;,  sus- 
pend the  opi'iation  IheieoJ",  of  whethei-  it  would  run  on 
iKitwitiistiindiiig  the  rmci'ture. 

Per  curiam — Wili-iams  and  Haywood.  This  is  a- 
plaipi  qnestiiin  :  it  is  clear  htw  when  the  act  once  begins 
to  run,  no  incapacity  to  sue,  as  coveilnre  <>i- the  like,  in- 
tervening befi.ie  the  three  years  are  completed,  will  pre- 
vent its  running  on  so  as  to  form  a  bar. 

Mr.  Moore  however,  urged  that  there  never  had  been 
any  decision  in  any  court  to  that  effect,  either  in  Eng- 
land or  here.  He  said  such  an  opinion  was  intim  iterl  at 
"Wilmington,  at  the  last  term,  by  Judge  Havwood,  alone 
on  the  bench.  Thai  he  had  heard  ot'sncii  a  docli  ine  helore, 
at  thi-  time  Mr.  Iredell  w  as  at  the  bar,  and  had  beOn  fur- 
nished by  him  with  a  list  of  authorities  upon  which  Mr. 
Iredell  had  formed  such  an  o|iiiiion;  (mt  upon  examining 
them  ;itteniivel\,  'hey  are  f  ruml  to  be  dictiims,  grounded 

on  tin-  case  of  Touch  tV Plowden,  368 — which  was  a 

case  adjndireil  upon  the  siMtnle  ol  fim-s. 

Judge  Haywood — Aftei'  the  opinion  I  gave  at  Wilming- 
ton, l;ist  s|)ring,  I  searched  tli.'  auihoriiies  when  I  went 
home  with  gren  diligence — many  of  the  iiistances  ai'e  but 
dictums.  hut  every  wlh  re  it  s' cms  to  be  hi-Id  as  law,  and 
not  to  he  (lis)iiite(l  where  the  point  occurs.  It  is  so  held 
in  4  Term  Rep.  310 — and  306.  in  the  notes,  ff'ils.  134, 
was  <leci<le!  u|ion  iliat  principle,  and  1  Strange  556.  I 
am  very  sure  that  the  law  is  so,  but  let  the  case  lie  over 
till  to-miniow,  that  Mr.  M  ore  may  have  time  to  look  in- 
to Huthorities.     Jodge  Williams  Hssented. 

Next  morning,  thecoun  having  looked  into  authorities, 
menlionel  tlie  rase  again,  and  -isked  tliecoiHisel  wheilier 
lhe>  wiiiild  argue  it :  and  ihey  d<(  lining  an  argument, 
the  court  ga\e  ju(lgm^■nt  lor  tlie  DefiMidaiit. 

NoTB. — Viile  Andnwi  v.  Mulford,  and  the  cases  referred  to  in  the 
note  ante  311. 


HAYVVOOn's    RErORTS.  48^1 

The  Survivini^  Pai-tiins  of  Auley  McNiiiishton  &  Co.  v.  Ocf^l796. 
Blocker's  Adrninistratoi'S. 


A  payment  mul"  afier  llie  teste  of  Ihf  wi'it,  is  not  i^ood  in  support  of 
Ihe  ple:i  ii\ jilene  ailiniaisiramt.  .IiKlg'ineiits  obta  iieil  ag-iin-.t  iin  ad. 
minislr,<tiir  alter  the.  ics/e  ut'tlie  wni  .lul  before  tlu-  time  of  plead- 
ing, may  be  pit  id  ai  tile  proper  lime-  Dfbis  assumed  by  the  ad- 
mini>.ii'..t(ir  before  tbe  ,esle  of  tlie  writ,  must  be  allowed  him  to  tlie 
amount  of  Ilia  assumptions. 

Case  iijxiti  assumpsit,  for  .tij'iiid.s,  wares  and  mei'cliar.- 
dize  sold  ;(iid  dfiivered  ;  And  ilie  Plalniiffs  proved  tiicii- 
case  stiHici  ■iitly,  and  esral)!i^lied  a  liemand  rn  ilie  amnuiit 
of  sE  324.  'Tiic  Defi'iidaiits  liad  pie  ided  p/e/JC  a(/?iiijizsira- 
"viL  They  pi'oved  effecls  eaiiie  to  liis  iiafids  to  liic  amount 
ofiSlora.  Tlie  admiiiisirator  g.ive  in  evidenee  sundry 
debts  j)aiil  before  tlie  instiintion  of  this  suit;  also  divers 
debts  p.iid  tftor  tlie  tcsle  of  tiie  leadin:;  process  (wiiicli 
in  this  case  was  a  sci.  fa.  a^.iiist  tlie  administr  alor,  to 
make  him  a  party  to  the  suit)  and  before  the  jjlea  plcided. 
He  had  tilso  pleaded  jiid^-nients  had  against  him  as  ad- 
ministrator, ()re\ious  ut  the  lime  of  hi:*  pleading;  and  he 
proved  several  judgmi*nis  had  against  him  after  the  teste 
(if  (h«'  writ,  aiiii  before  he  hail  notice  thereof,  and  before 
J)!'  a  pleaded.  IIo  also  proved  assnmplions  madi'  by  him- 
self, to  |»ay  several  ilehts  of  ibe  intestate  to  a  large  amotint, 
prior  to  the  tes!e  of  the  wi'il. 

M:  Jlonre  and  ..)//-.  Hiaj,£w  the  Plaintiffs,  argued  that 
the  coioinon  law  of  Eog! and,  with  respect  to  executors 
and  admiiiistrators,  is  tlie  law  here,  unless  where  it  has 
boen  altered  by  acts  of  tlie  Lrgislatur  •,  passed  since  the 
year  irrS,  where  the  coinnion  law  of  Eoglaml  w.is  en- 
forced hereby  act  of  Assembly  ;  and  aithough  the  Judges 
may  be  iuclineil  to  tliiiik  some  p.nt  of  thai  law,  as  it  ic- 
sjiecls  excctiti."s  and  adniiii^tr.itors,  more  sirict  than  is 
pe.lccliy  I  (ii!-.istpnt  with  Eq'nty,  yet  as  tlicy  are  to  ex- 
pound, rn»t  make  the  law,  and  as  the  Legislature  have 
rievrr  altered  (lie.se  seeniingly  excepiionalde  parts,  it  is 
the  liusincss  and  duty  of  the  jiidiriary  to  declare  it  as  it 
really  is.  Then  a«  to  volnntai-y  payments  niaiie  afiei' 
the  teste  of  Kie  writs,  it  is  a  cleai  jiosiiion,  that  the  are 
ilh'gti!.  .  Wi'eti  a  suit  is  once  instiliiied,  it  lak  s  fro  u  liie 
aduKMi.str.'.tor  the  o|iiioii  hi'  before  had.  of  fust  p  .ving 
wli  >t  Creditor  in  cquai  degne,  he  thonglit  prop,  i  He 
can  no  otherwise  prefer  u  creditor  of  equal  d  gree,  than 
by  confessing  a  judgment  to   hitu  time  enough  to  he 


C4tr) 


482  Haywood's  reports. 

Oct.  1796.  pjradfil  in  bar  to  the  foiincr  acticm.     The  pica   of  plenc 
'^^-'''^O''  atlmiuistravit  d'lCs  iint,  as  is  siipjKiscd  on  the  <»ihcT  siJe, 
i(  lull'  to  \lu-  tioif  it  is  pleidrd,  sd  as  that  a  pa)  merit  made 
pricir  t<i  that  time  will  sti|ipiirf  it.     The  form  of  pleading 
is  one  of  till-  hist  exideiiCfs  ol  what  tlie  law  is  ;  and   the 
uniform  tenor'  of  this  plea   is,    tliat   tire   Defendant    liatli 
fully  ;<dmi\iislered  ;  and  that  at  the   time   of  the   action 
bi-ougiii,  or  at  an>  lime  since,  their  were  not  in  the  hands 
(418")    "f  '''^  administrator,  any  of  the  effects  of  the  intestate  to 
be  administered.     The  words  al  the  time  of  the   action 
.broufili'j.  or  any  time  alterwards,  are  so   essential,    that 
wiihout  tiicm  the  plea  vvoulij  be  vitious.   3  Lev.  28.    But 
a  payment  after-  the  time,  proves  there  were  assets  alter 
the  teste  in  the  hands  of  the  administrator,  and  disproves 
tliat  purl  of  lite   plea.     A  bare  staling  of  the  essential 
par  ts  of  tiris  plea  answers  what  is  insisted  on  for  the  Dc- 
fendarrt,  as  to  its  relation  to  the  lime  of  pleadirig.     it  also 
])ro\es  a  relaiiorr  of  the  plea  to  the  teste  of  the  writ,  and 
that   the  administration  to  be  go>d,  must  have  beeii^be- 
fore  not  after  that  time,  whether  any  iroiice  be  given  to 
the  administrator  oi*  not.     Noiice  is  no  way  to   be    con- 
sidered— it  is  irot  staled  in  the  i)lea  nor  need  it  to  be — it 
is  not  more  hard  to  com|)el  tlie  .idmirristrator  to  take  no- 
tice of  the  comniencemenl  of  a  suit  against  him,  than  it 
is  to  lake  notice  of  jiidgmerrts  obtaiired  against  his  intes- 
tate in  Iris  lifetime  irr  every  court  tlii'ougjioui    ihe   coun- 
try—lie  is  undoubtedly  bound  to  this  under  the  pain  of  a 
devastavit.     It  may   possibly  operate  injustice  in  some 
cases,  to  requii-e  an  adminisirator  to  take  noiice  of  a  suit 
at  the  moment  of  its  commencement,   and  before  he   has 
actuiil  noiice,  under  the  penalty  of  a  dcvasiavil,  yet  no 
doulit  the  rule    was   oi-iginally  established    upon  proper 
principles,  which  woulil  shew  themselves  as  soon  pei-haps 
in  conseipience  of  an  infraction"  of  the   rule,    as   by    any 
other  means.      Many  <>f  the  old  rules  of  the  common  law 
appi;ai-  useless  and  unjust  to  a  hasty  observer,  and  some- 
times to  a  critical  one  ',  but  once  broken  inupoii,ai'C  suc- 
ceeded by  such  a  train  of  evils,    as   abundantly    demon- 
straie  tlie  wisdom  of  aniiqiiity  in  framing  them.     Tlicy 
ought  not  to  be  removed  b)  the  \iolenceof  any  rude  hand, 
nor  wiiliout  great  circrimspei'iion.  and  iie>er  by  the  judi- 
cia'>.      As  to  the  e\  idenci' of  divers  debts   assumed  be- 
fore ilie  teste  of  the  writ,  iln-y  uere  assumed  as  adminis- 
trator, wiicreby  is  cleaiiy  implied,  that  he  is  only  to  be 


Haywood's  ueforts.  483 

liable  in  tiiat  cliaiactPi' ;  ami  llien  he  sfaiids  preci'=!ely  in  0^'.  1796. 
tilt*  same  siltiatioii  lie  did  beion-  as  to  otiicr  creilitors — a  -""^'■^^ 
promise  u>  pwy  the  tlelits  as  adiiiiiiistrator,  di<l  not  oblige 
hiui  in  propriojure.     It  is  not  like  (lie  rase  of  a  bond  gi- 
ven by  ilie  ailniiiiistratoi-  to  pay  the  debt  .it  the  intestate, 
and  acctpied  in  lien  theirof,  b>  the  crediioi'. 

Taylor  in  leply — The  law  cannot  be  as  stated  by  the 
PlainiiH's  (diinsel,  that  payments  in  ule  by  tlie  adinifiis- 
tra'oi'  al'tcr  ilic  t'ste,  and  before  notiee  of  the  writ,  are 
not  allow.tble  as  cvidcore  in  support  (it  tiie  plea  »\  plene 
admiidsiravit.  Common  sense  and  coniinon  jus;ire  re- 
qnii-i-,  iliat  the  adminisir  itui-  shall  have  noUcc  from  the 
ci'ed.toi-  of  his  demand,  before  be  is  bound  to  attend  toil,  fA-iQ-\ 
or  can  coinmii  a  devastavit  or  misappliiation  of  the  as-  ^  ■^ 
sets  by  pajing  other  rreilitors.  tlow  eao  tin-  institution 
of  a  suit,  whrre  the  \srii  Is  taken  out  perhaps  iti  tlie  most 
seeret  manner,  be  calciilafed  to  iifford  'his  uotiee  to  the 
administrator?  Why  will  the  l<ivv  cnnipi'l  iiim  to  take 
notice  (if  that  circumsiance  .'  Wity  reiinire  a  tjiini;  so 
uniTasnnabic  in  itself?  The  ar^nmenl  of  the  Plaintiff 's 
counsel  proceeds  upon  the  form  "f  the  plra,  bui  that  is  not 
the  only  furin — it  is  only  calculated  to  (it  the  case,  where 
in  tact  a  foil  administration  had  taken  place  at  the  lime 
of  llie  rcnnnienMiii' lit  of  the  suit.  i3u!  if  (lie  Ctse  were 
not  so  situated,  but  the  administration  had  taken  place  af- 
ter the  listeoflhe  writ  and  before  notice,  I  apprehend 
the  plea  inislit  state  that  fact,  and  sa^  the  writ  was  ta- 
ken out  un  such  ada>,  and  that  the  adininislrator  first 
bad  naiice  thtienf  on  such  a  day,  before  whicii  da^  he  iiad 
fullj  administered.  Tin-  plea  in  the  present  Case  is  not 
dr.iwn  out  at  large,  but  by  a.u;ieeaieiit  between  the  coun- 
sel on  eillier  side,  is  supiiosed  to  be  dra'.vii  out  at  full 
length.  We  may  as  well  suppose  the  plea  of /i/eite  od- 
miiiistravit  to  be  of  this  latter  lonii,  as  of  that  stated  by 
the  I'l.iiniitf's  counsel.  I  can  sec  no  re.ison  why  such  a 
pleash.  nid  not  be  good.  As  to  tlie  assumpsit,  it  was  made 
before  the  teste  of  the  writ.  If  it  give  a  security  lor  the 
debt  upon  the  Defenilaiit  in  jure  propria,  he  ought  to  be 
allowed  it  as  a  payment  as  adniiMistrator,  as  much  as  if 
it  had  been  a  bond,  and  (bat  undoubtedly  would  lia\e  en- 
titled him  to  an  allowance  to  tlie  amount  of  the  bond. — 
^  Vent.  358.  An  assumpsit  thou:;li  made  as  adniiiiistra- 
tof,  being  made  subsequent  to  tlie  death  of  tiic  iiilestate, 
is  not  a  contract  chargeable  upon  the  estate  of  the  de- 
61 


484  havwood's  heports. 

Oct.  1796  ceased.  No  roiiti-acls  are  rhargeablp  upon  that  fiinil,  bift 
-"^"^""^^  siicli  as  were  riiadi-  by  tlif  dt-ceasid,  except  in  a  few  in- 
stanct's,  siicli  as  fnneial  expenses  and  tin-  like,  wliuh  are 
necessarily  ixcMsioiied  by  llie  death  of  the  intestate — 
Wiie  it  i.llowcd  ro  ixeculors  or  administraiors  to  make 
contracts  cliar.K;eal)lc  ii|)Oii  tlif  i-siate  of  the  deceased,  no 
dead  man's  estate  wmld  be  safe  :  besides  it  will  not  bi; 
denieii,  iliat  where  an  executor  or  administrator  under- 
takes to  pay  a  debt  of  the  decea-sed.  he  becomes  theieby, 
ab^iiliiiely  boniid  to  do  it.  He  makes  ii  iiis  own  propci- 
debt — no  CNcnse  for  want  of  assets  or  the  like  will  save 
Jiini.  As  lo  the  judgments  obtained  beloie  they  pleaded, 
I  will  say  (Kiihiiig  in  respect  lo  them,  since  liie  reason- 
ina;  oi  the  Plaintiff's  counsel  admit-.,  that  a  judgment  ob- 
tain! (I  al'ti'r  a  suit  coinmenced,  but  before  the  Defendant 
(_420;  jj,  i„,„|„|  ^„  |,i,..,ni^  ,„,,y  |)e  pleaded  in  bar  to  the  suit,  and 
of  I  ourse  tlmt  plea  need  nut  lelaie  to  the  teste  olthe  writ. 
Per  curiam — Williams  absent.  The  plea  of  fnlly  ad- 
minisi.ered,  as  to  lis  lonn,  is  as  stateti  by  'he  Plaintiff's 
counsel;  and  in  strictness,  a  paymeni  made  after  the  teste 
is  not  good  in  support  of  plcne  administravit.  As  to 
judgments  obtained  al'lep  the  teste,  they  may  be  pleaded 
by  the  MdiTiinistrator.  if  obtained  before  (he  plea  pleaded 
at  its  pri^per  lime.  As  to  debts  assumed  by  the  adminis- 
trator b(fore  I  lie  te.sie  of  the  wiit,  sndi  assumption  <ibli- 
ges  him  to  |)ay  the  debt  as  effectually  as  if  he  had  given 
a  bond.  He  must  therefore  be  allowed  to  tiie  amount  of 
his  assumptions. 

^OTE.— Tlir  firsi  part  of  this  opinion  was  incorrect — if  in  fact  the 
psjnients  wni.  made  alter  the  it  ste,  and  brfore  notice,  that  should  be 
staed  in  tlu-  plea  ;  and  then  the  payments  lielore  notice  may  be  given 
in  i-iidtiici- l>y  ilie  udministratur  Offi.Exec.liS,  God.  Orp.  Leg. 
220.  Plow.  Com   -277. 

NoTi. —  Vide  iMiie  ti>  Evans  v.  Norria's  Jldm'rs.  ante  411.  I.itllejohn 
V.  Underhill's  Ex'ra.  2  Car.  Law  Kep.  574. 

Anonymous. 

Holmes  had  obtained  a  judgment  in  the  County  Court, 
and  /J«<fer  having  stilted  in  an  aftidayit  some  causes  of 
coiiij)!  iot  against  the  judgment,  had  procured  a  certiorari 
lo  isstie  retiiriiabie  to  this  term,  only  two  terms  having 
first   intervem-d. 

Perciirinm — When  a  certiorari  issues,  the  adverse  party 
liHs  noii(e  to  appi-ai  on  ili>  letiiin  day  of  the  ccrtuirari, 
and  if  the  writ  is  nut  then  returned,  nor  any  proceedings 


Haywood's  reports.  485 

had  to  continue  it  in  rmiit,  it  is  likr  utlier  writs  disron- Oct.  i796. 
tinned,  and  a  procedendo  (ni_e;lit  to  is>«iio.     Hcie  is  cleHily  ^■^^^'"^^ 
adiscniiii'iiiaiiO',  tln'r<-loi-e  let  a  discouTinuance  beentei'i-d, 
and  a  procedendo  issue  to  tlie  cmiit  bflow. 

Kiddie,  Survivin.s;  Pai  tner  of  Ramsay  &  Kiddie,  v. 
Gabriel  Debrutz. 

A  confession  in  an  answer  to  n  bill  in  Equity,  maj  be  given  in  evidence 
against  the  Defendant,  in  an  aciion  b)  a  tlilrd  pi.ison.  I'lu  giving 
of  a  noic  is  no  exnnguisliment  nf  the  prior  cause  of  actum  ;  and 
whrre  there  is  i  count  upon  :i  note,  as  well  as  the  (general  ctiunis,  a 
recovery  may  be  had  upon  the  general  counts,  although  ihe  note  is 
alleged  to  be  lost. 

This  was  an  action  upm  tlie  case,  and  the  declaration 
contained  a  count  upnti  a  note  of  hand,  a  eniiiit  for  money 
lent,  for  work  and  lanoi-  done,  anil  ih<'  otlier  iiBual  cnunts. 
Upon  the  trial,  the  PhiintifiF's  connsi-l  ciuild  not  jiroduce 
the  note,  iliey  alleged  ii  wa-  lusi:  but  tiie}  produced  an  an- 
swer in  Equity  of  the  Defendant,  to  a  bill  hniosjlit  ai^ainst 
him  b)  a  thii'il  person. in  sviiii  ii  answer.  In-stated  ascliediile 
of  di'bis  owing  to  tiim,  and  ainana;si  otiii  is,  he  stated  a 
debl  of  £90  doe  to  the  IMaintiff.  Jlr.  Spiller  olijected, 
that  this  bill  and  answer,  being  a  suii  lietween  other  par- 
ties, and  in  vvliich  the  Plaintiffs  were  no  way  concerned,  (421) 
the  answer  could  not  be  read  as  e»  idtnre — it  was  evidruce 
only  between  tliose  who  were  parties  to  the  suit  in  Equity. 

Fer  curiam — Where  a  verdict  is  given  in  evidence,  it 
is  to  the  end  thai  conclusions  drawn  by  a  former  jmy  be- 
tween the  same  parties,  upon  the  same  |)oiois,  may  have 
some  weight  wiih  the  piesent  jury  ;  and  as  it  is  a  con- 
clusion upon  evidence  subject  to  liie  cross-examination 
and  contestation  (d'tlie  jiai'ty  against  whom  it  is  produ- 
ced, il  is  '.tllowed  to  be  given  in  evidence  against  him — 
but  a  verdict  between  otlier  parties  cannot  he  given  in 
evidence.  However,  the  i  onfessions  of  a  Defend. int,  iho' 
made  in  private  con>ei'.''aiion,  and  to  per.-.ons  no  ways 
concerned  in  interest,  may  be  given  in  evidence,  and  that 
is  the  princi|)le  the  court  goes  upon  with  respi  1 1  to  a  con- 
fession in  an  answer.  It  is  equally  proper  to  iTCeive  evi- 
dence of  a  Confession  contained  in  an  answer  made  upon 
oath,  as  it  is  to  receive  evidence  of  a  confession  made  iu 
a  less  sidenin  manner.     The  eviilence  was  i-et  eived. 

Mr.  fniliams,  for  the  Defendant,  then  objet  ti  d,  that 
there  was  no  evidence  to  support  the  general  counts ;  antl 


486  havwood's  beports. 

oc,  1796  if  fliprc  were,  yet  it  Irxiii.e:  bocn  proved  that  a  note  of 
'^^'^'"^^  hand  «as  fcivni,  iirid  is  now  lost,  there  could  be  nu  rero- 
^ei-y  on  the  general  roiints,  lor  tli:ii  note  was  a  neiroiia- 
ble  iiistniiiieni,  and  nia^  now  be  in  ihe  liands  nf  some  in- 
dorsee or  hiilder,  wlm  ina_\  iiereafler  resort  to  tlie  Defen- 
dant, and  will  be  entithd  to  recover  no'witb'-'andins 
the  jiide^menl  the  court  may  now  sive.  The  liohirr  will 
not  be  subj'-et  to  any  transactions  wliirb  may  takt-  |>lacc 
between  the  original  partirs  to  the  note.  It  is  true,  a 
Court  ol  EqfiitN,  in  a  case  ihiisi  ircuinstaiiced,  wonld  make 
a  de(  ici ,  but  it  would  do  so  npi'n  leriiis — it  would  ri-(|uire 
the  Flainiift'to  tfive  siTUfif\  that  the  note  should  not  af- 
terwards he  deiiiaiidi'd  of  the  Defendant,  <ir  if  d.'nianded 
tliat  he  should  be  indemnified  tiierelVom.  This  court  can- 
not impos'  any  such  terms — Ihcj  must  j2;ive  an  absolute 
unconditional  judgment,  if  any.  A  note  of  hand  may  be 
gi\en  in  f\idence  to  support  a  count  for  money  leiji.  but 
the  proposition  will  not  hold  e  couvcrso — proof  ol  service 
done,  will  not  maintain  a  cinnt  ujioh  a  note.  'I'he  in>tc 
in  the  jiiesent  case  cannot  he  produced  to  siijiport  that 
count.  Vere  it  produred  lure,  and  filed  amongst  ijio 
court  papers,  there  wouirl  be  no  danger  (jf  its  rising  up 
hereafter  to  rhaige  the  Defenilant  ;  and  allliough,  had 
tiieie  been  no  count  upon  a  note,  nor  any  e\idenec  of  a 
note,  the  confession  contoined  in  tin'  answei  might 
have  been  competent  to  the  proof  of  the  count  for  work 
(422")  and  labor  done  ;  yet  when  the  evidence  shews  a  noir,  it 
hinders  a  leeovery  upon  this  count  also.  My  objection 
is,  that  whilst  the  note  exists,  there  can  be  no  recovery 
upon  the  considej-ation  for  which  it  was  given,  or  the 
cause  ol'  it.  lest  ti.e  Defendant  might  be  twice  cliaiged. 

Dvffy.  c  contra — The  giving  of  a  note  is  no  extinguish- 
ment of  the  prror  cause  of  a<  t'on,  as  a  bond  or  otlnr  in- 
strument miller  seal  is.  1  Burr.  352.  lie  said  lie  wa» 
unprepared  with  authorities,  not  having  expected  the  ob- 
jeeiion  ;  hut  if  the  court  wonld  direct  a  verdict  for  the 
Plain'ilT,  suiiject  to  their  opinion  as  to  the  matter  of  law, 
lie  Would  produce  authorities  some  time  in  this  term. — 
This  wasassrnted  to,  and  the  verdict  taken  acconiingly. 
And  the  court  having  taken  time  to  considi-r  the  case,  and 
having  seen  the  autliorilies  itroduced  by  Mr.  Duffy,  viz. 
Ld.  Ray  1427.  and  12  ,.Vo(/  309.  gave  judgment  for  the 
IMaii  tiff— ihc  !)( feiidaiii's  counsel  declining  any  further 
argument  against  these  autliurities. 


Haywood's  reports.  487 

Note.— rWe  ^dJim.  Edit,  nf  Ut  nil  on  F-M.  286,  as  to  confes-  Oct.  1796. 
sions  ill  a'l  mibWii  t-:  I). I  ^n  Kqn  tv.  'I"i  '  T'S'  o'  t  in  this  case  is  ^^"V>^ 
fully  supported  by  2  Pliil.  on  Evid.  11,  f2d  Am.  Kdii.J 

Aimnymoiis. 

The  Plaintiffin  (liis  raso  lnul  (ibtaiinul  jinlermfnt  against 
the  Sliciiff  ill  iiii  action  in  Ej<'(tnM'i!t  in  tin-  Cr)Miiiy  of 
Ciiiiibci  laud,  iiiid  lliciT  Wits  nn  rrniiiiri-  in  tin  Cnnn'y  to 
whom  pfocess  rniild  bf  diieilfd.  Mr.  Moore,  f<'i-  the. 
Piai.  tiff,  moved  hit  |iror<ss  nf  )'X<  cutioii  should  be  di- 
rc(  led  III  tlif  Slifiiff  (if  MnniT  Cmn-tj',  »nd  rt-nd  tlio  net 
of  1779.  c.  5,  s.  3.  and  npiiii  heaiint;  litis  art,  the-  rotirt 
oi'dcied  a  writ  of  ii>:ssissi<rit  tn  issin',  diiected  tinlic  She- 
rili  (if  Mdoic  Count)  arcdtdiiif^ly. 

NoTK. — Videa-iuS'  18J1,  c.  3,  wi'i  h  nmkes  ample  pruvisinn  fVirtlie 
execution  ot  process  by  llu-  Slionfl'  ol  an  adjoining  ci  U' ty,  in  all 
c:iscs  wiieri  tht-ve  is  no  SliLtiff"  or  coroner,  or  wliere  tlicy  arc  dis- 
•qualifiedlrom  acting. 

Evans  v-  Kennedy. 

The  action  of  trespass  and  false  imprisonment  is  the  usual  and  proper 
reniedy  for  one  wlio  is  held  in  boiidaj^e,  to  try  his  right  c.f  freednm. 
AVht-n  the  Plaintiffin  :in  acti'  n  of  llii^  kind  i-;  not  ready,  and  obtains 
a  cuntiimaice,  the  Dtl'eiulant  must  give  bond  a'.'!  sureties,  for  the 
Plaintiff's  appear.tici  at  the  next  ttnn,  and,  in  the  mean  time,  to 
treat  him  with  humahit)  :  and,  hy  IIatwood,  .lurlge,  also  lo  illow 
PI  iniiff  time  to  procure  evidence;  but  WiLLiiMS,  Judge,  thought 
otherwise. 

The  Plaintiff  was  a  person  of  roloiif,  v\lio  cl.^iitied  his 
fi'eediiii),  and  was  detaint^d  in  sla\crj'  b>  the  Diftiidant. 
The  Plaintiff  and  Der<'ii(lHiil  had  a.i^fieiMl  that  an  artion 
siinuld  he  institiilcd  wiili'nit  in-oress,  and  an  ih.sue  made 
Up  Id  try  the  (act  ;  and  .some  tiniilit  iniw  aiisinsc  in  regard 
to  the  proper  for  in  (if  ai'tioii,  and  nf  the  issue  to  hi-  made 
up,  I'lcy  leftiied  it  to  the  cnurt  todiiect  the  jiioper  foi  in 
of  actum  and  issue. 

Et  per  curiam — WiiiiiiMs  &  HAYWoon,  Jtidqes. — The 
action  used  mi  such  occasi.ins  f  n-  eii;hi  or  ten  years  past, 
is  the  action  of  trespass  and  false  iinprisoninent ;  to  which 
the  Dcfi^ndatit  pleathnl  that  the  I'laintiff  is  a  slave,  and 
caiitnit  maintain  an  action  ;  and  to  this,  the  Plaintiff  re- 
plies, lie  is  not  a  slave;  and  an  issue  is  made  up  upon 
this  point  and  tiied  by  a  jtir}.  The  issue  wasliien  made  (423) 
up  III  the  presnit  case  accordingiy,  and  the  evidence  not 
being  competent  to  prove  the  Plaintiff's  freedom,  the 


488  Haywood's  ueports. 

Oct.  1796.  coupf  recnmiDPndeil  Mie  wiibdiiiwiiia;  a  juror,  wliich  waa 

'^■^^"'^^^  ixsftyci]  lo  ;  and  tlirn  thf  Plaintiff's  cnuiisel  iddm'cI,   tliat 

D<f'iid:inl  iiiight  gi^e  bond  and  sureties  to  pciinit  the 

l'lniii'iflr  to  appf'-ar  at  next    term,  and  to  treat  iiiin  with 

liunianitv  in  iln-  mean  time. 

Et  per  curiam — This  has  oCten  been  ordered  before  on 
similiir  occasidiis,  and  is  tlic  usual  practire  where  th6 
trial  is  delayed  till  a  sucret'din.c;  tei-m — and  it  was  so  or- 
dered arr(ndina;l\  in  ihe  pi-esent  case. 

Jud_e;e  Haywood — [  think  the  bond  usually  given  goeth 
further- — to  allow  (he  Plaintiff  timt-  to  collect  evidence 
and  (irnrure  drposiiinns.  if  necessary.  Jiid.«;e  W  ili.iams 
— I  do  not  recollect  the  Dil'endant  was  e\er  bound  to 
that  :  it  vvoulil  prr»ducc  a  loss  of  the  Plaintiff's  service, 
which  in  the  event  of  a  vei'dict  against  him.  the  owner 
conid  not  be  compensated  for.  So  the  bond  was  ordered 
to  be  taken  as  above. 

Note.— ri(/e  Gober  v.  GoBer  2  Hat,.  127.  Parker  v i6.  ."545. 

Negiie-- :ire  pii  sumt  d  to  he  lavt-s  liil  thr  cmitr.iy  appe  .r.s ;  not  bo 
of  pirsoi  '  ofmixed  Ulo')d.  Guber  v.  Gober,  2  Hay.  170.  Scoll\.  TVil- 
lianis,  1  Dev  Hep.  376.  Tins  lust  c  sc  al.s  il  c  des  ili;d,  ucider  par- 
ticular ciicuinst  inccs,  sub.stantial  damages  may  be  given  in  actions  of 
this  nature. 

Surviving  Partners  of  Auley  McNaughton  &  Co.  v. 

Lester. 

The  Plaintiff  produced  a  notice  of  taking  a  deposition, 
pui-porting  'hat  the  deposition  would  be  taken  on  a  cer- 
tain diiy  in  Honsti-iov\n,  before  Justices,  naming  them. 
Thf  ci  ptiotr  of  the  (Icposiiinn  expi'essed  that  it  was  taken 
on  iliat  day  :it  Honsi-rtown. 

Fer  curiam — I'lic  deposition  cannot  be  read.  Thft 
house  when'  it  is  to  be  takin  must  be  specified  in  the  no- 
tici-,  not  till  town  only  ;  for  tlien  the  deposition- may  be 
taken  at  a  place  in  the  town,  of  whi(  h  Ihe  adveise  partj 
may  know  nothing,  and  thus  be  deprived  of  the  benefit  of 
cross-cxaminalion. 

Cox  V.  Jackson. 
A  person  who  has  a  chatiel  in  posscssinn  belonging^  lo  another,  and 
exriianffis  il  <ir  another  irlicit,  acquires  no  property  in  the  article 
takui  11  ixcl.anije,  iftht  r.  d  owner  tl)inl;s  |)ropei' to  approve  of 
the  ir.iiiKac-iiiiii.  Wlit-n  thi-  possession  of  a  chattel  does  nol  follow 
the  coiivi-yanc.  ,  it  is  siri.iip  circumsiaiicc  to  show  tiaud,  though  it 
may  bi  explained  or  rebuited. 

Trespass  to  recover  the  valne  of  a  horse  sold  by  the 
Defendant,  a  Constable,  to  satisfy  an  execution  delivered 


uaywood's  keports.  489 

to  him  at  the  suit  of  Williams  v.  Jolm  Cox,  the  brotlier  of  Oct-  1796. 
(ho  PlaiiitifT,  iipmi  whirh  lie  tdiik  'he  horse  in  qiiention  as  ■^^"'^"^'^ 
the  proiierty  otJnhn.  The  Pliiiitiff  alle.a;es  thi-  horso  was 
his.  The  I'litloiiee  proved  John  tn  havi-  bt-on  vory  miicli 
indibied  (o  suutlry  (X'rsons — tiint  he  had  -.i  horse  and  some 
otln  !•  tr'iflins  artioli-s — that  Collins  liad  a  jii<ii;inent  against 
him,  and  look  out  cxeciitiori  and  put,  it  into  the  liatids  of 
an  officer  ;  tiiat  other  officers  who  Lad  executions  f(Miiid 
it,  and  levied  the  execution  on  tiie  horse  and  other  arti-  C'*~"*J 
ch's,  an<i  sold  the  smaller  articles,  and  did  not  Sfll  the 
horse  f(tr  some  lime,  leaving  him  in  thi^  possession  lA'  John 
Cox,  until  it  begao  to  hr  rumored  tliat  the  execution  was 
fraudulent  ;  wlieo  Collins  orilen-d  the  officer  to  sell,  who 
sold  accordingly,  and  George  Cox.  tlie  brother  of  Jo/ui.  as 
(he  agenr  <>{'  Collins,  became  the  purchaser,  and  left  the 
horse  in  tlie  possesMion  of  John  for  some  time,  and  until 
the  Defendant  levied  H'illiams'  execniion  on  him,  and  ap- 
pointed a  day  of  sale  ;  on  which  day,  Collins  appeared 
ami  pro\  ed  tlie  sale  and  iiurchase  as  above,  and  had  the 
horse  delivered  (o  him  ;  and  the  next  morning,  sold  him 
(o  George  Cox,  without  receiving  any  money,  hut  only 
taking  his  note  ;  part  of  which  Collins  said  was  jiaid  af- 
ter the  trial  of  this  cause  in  the  County  Court,  abour  IS 
months  after  the  date  of  the  note,  by  discounting  a  debt 
Willi  a  creditor  of  his — the  residue  be  said  was  retained 
in  the  hands  of  George  Cox,  to  satisfy  a  debt  of  Collins  due 
to  another  creditor,  wliicli  debt  however  has  not^et  been 
paid.  A  shoit  time  after-  George,  ijurebaseil  the  horse,  he 
was  again  in  the  posscssiio)  of  ./o/m.  a-id  continued  in  bis 
possession  till  he  exchanged  him  as  bis  own  for  another 
horse  with  a  stranger,  receiving  some  mtme),  as  the  dif- 
ference of  value.  Soon  after  (be  exchange,  he  brought  the 
iiorse  received  fi'om  the  stranger,  to  George,  who  appro- 
ved of  I  be  exchange  and  lent  the  horse  to  John;  in  wliosc 
possession  he  eontinued  for  some  months,  and  until  the 
Defendant  seized  and  sold  him  to  satisfy  fViUiums'  exe- 
cution. It  was  proven,  that  George  bad  lidilen  tins  lat- 
ter horse  once  or  twice  afier  the  exciiange  took  place. 

Jtr.  Williams — Before  Mr.  Taylor  procei-ds  to  make 
his  remarks  upon  this  case,  it  will  l)e  proper  for  me  to 
apprize  bim  of  the  grounds  of  our  (lefencc.  We  rely 
princijially  upon  iliis.  thai  the  transacuon  bet'^een  Col- 
lins and  George  ami  J.ihn  Cox.  was  fraudulent  and  calcu- 
lated to  protect  the  horse  against  tlie  claim  of  other  ere- 


490  HAY  wood's  keports. 

Oct.  1796.  (lifors,  and  tlioiefme  »oid.     .\iid  fur  tlip  purpose  of  as- 

^-^~'''"^*^  ciit. lining  what  Hre  the  inaikft  of  a    frmiduliiit   tr:irisac- 

ti'Mi,  we  wliall  ii'lj'iipoii  Twigiie'^s  c:ise,  S  Co.  Rep.  8l  — 

beiii.a;  a  idiisiniciiDii  u|)i>ii  ilie  ait  of  13  Eliz.  c/i  5.  fniin 

wlinii  our  own  ,ict  of  1715,  cli.  38.  sec.  8,  is  taken. 

TayU)7- — Ti'e  case  ciied  by  Mr.  ffWiams  is  rertaitily 
suuiiii  law,  l)iit  il  can  neiei-  be  inide  lo  ih-,w  upon  a  case 
cifcunistanced  as  tlie  |»ics«'.iit  one  is.  None  of  ilte  inarks 
of  hand  laid  do\Mi  in  Tivigne's  rase,  are  found  in  liiat 
no«  bei'oe  ilie  coui'f.  Tne  sali-  and  jturi'liasc  by  Collins 
/Acts')  ^'■''''  "'"  "••'de  piNiiling  any  suit  b>  anotlicr  (  reilitor  «itli 
^  "  "^  a  design  lo  (lei'cai  his  Miii.  The  pi  opi-itj  wln-n  pnrcliased 
w.is  noi  put  inio  the  possission  i>\'  Johiihy  Collins,  ir  with 
lii>  mnseiit.  Thiic  is  no  trust  betvM-cn  tlieiii,  anil  these 
trans.tciions  were  not  done  in  secret  ;  but  here  was  an 
oj)en  Icvjiiig  of  exci  iiiion,  ailvertising  ii  for  sale,  and  an 
open  puiihase  pnblKl}  made  by  the  highest  bidder.  One 
of  (lie  most  jiroininent  features  ol  franii,  is  its  being  dune 
in  secret ;  In  le  notlnng  like  secrecy  is  aitcin|)ied.  After 
tiie  piiicliase  of  Collins,  John  indeed  had  possession 
again  ;  and  possession  of  (he  lonircr  owner,  after  a 
sale  made  by  liini,  is  mentioned  in  Twigne's  case 
as  a  inai  k  of  fraud  ;  but  every  mark  oi  fraud  may 
be  exjilained  by  cirrumstances,  and  ovVriurni-d  wliero 
the  ciicumslanies  prove  that  no  fraud  was  intend- 
ed In  oui'  ease,  Hie  horse  v\as  not  left  wiiii  John  Cox 
by  CoUins's  (on-iCnt,  but  alter  he  Uudi'istood  the  oorso 
had  been  left  in  bis  possession,  he  tiicn  agreed  John  Cox 
shonld  k<  ep  bim  for  -oine  sliori  tune,  mat  he  niigh.  pro- 
cure  tbe  money  in  the  mean  tune,  if  be  could,  andreiieem 
the  horse,  'i'be  money  was  what  lie  wascimtiy  anxious 
to  obtain.  This  shews  he  was  not  in  John's  p  issessioii 
for  the  ))ur|iose  ot  defrauding  ciediiors — 1<  siiews  tiic 
piirriiase  was  iiit  made  to  vesi  tlie  legal  property  in  the 
pun  baser  with  a  \i>\\  of  securing  ilic  oSi'  to  the  foinice 
owner.  It  is  not  ever)  possession  of  the  firmer  owner 
afler  a  sale,  tliat  will  nnike  ii  Icaudulent  ;  but  onlv  siiili 
a  possessjoii  as  is  imaprtiile  of  a  lair  explanaiion,  and 
siiews  that  the  benelii  ol  tlie  |iro|ieriy  was  intended  lor 
the  foruiir  owner.  Nolu nhstanding  the  sale,  if  me  re- 
taining of  jiossessioo  by  John,  is  explained  by  the  cvi- 
di  lice  to  base  been  fir  no  li  andulr.ii  purpose,  then  ihis 
case  has  not  one  in. irk  ol  fraud  mcatioued  in  the  case 
cited  by  Mr,  H'tUiums. 


Haywood's  reports.  491 

TFUUams  for  the  Dffciidaiit— Where  a  transaction  is  Oct.  1796. 
secfet  bft\vi'<»(Mi  ;i  cifditor  ami  liis  di'ljtor,  f  n'  ve-^tmi^  tin'  '-^'■^'"^i'' 
pro()fit>  »(  ihe  latter  in  the  f<iriner,  to  t\w  dofettnig  of 
otiier  nedit'iis,  it  is  ^'iirely  a  mark  of  fraud  ah  Mr.  Tay- 
lor has  admitted;  but  iliis  tlsnii^h  it  is  one  feature  of  a 
fraudulent  iraiisacti'iti.  is  not  tlie  only  one — a  transaction 
may  lie  fiauduleui  lliougli  done  in  the  must  puiiii*'  man- 
ner. 1  take  this  to  b<' one  of  tiie  dofiiiitioti^  of  fraud — 
wlieiT  a  creditor  forms  a  sclnme  vvi»li  his  d  btor  to  be- 
come tlie  osteiisibh-  |)urrhasei'  of  his  pro|ierty,  and  to  al- 
low him  the  be'.efit  of  it  in  such  a  manner  that  o'hi'r  ■re- 
ditors  cannot  resort  to  it  for  Ihe  satisfaction  of  theii- debts, 
whither  Ihe  means  made  use  of  for  these  pur|iosfs  were 
seci-et  or  (lubiic,  or  whether  the  crediior  len'iv-s  an  ap-  f42fi'\ 
paient  transfer  of  the  propeify  for  hi^.  debt  'o  the  exclu- 
sion of  other  ci-editors,  when  in  I'eality.  th''  bcifficial  in- 
terest is  not  vesti'd  in  liim,  but  remains  with  Ihe  debtor. 
A  creditor's  debt,  although  it  he  a, just  one,  and  the  pro- 
jieriy  received  in  satisfacii'Mi  of  it,  he  of  no  more  value 
than  Ihe  debt,  yet  if  it  be  received  not  for  ihe  real  and  true 
purpose  of  satisfying  his  debt,  but  f.r  the  pur(>nse  ot'itut- 
ting  tlie  properly  fiin  of  the  reach  of  other  creditors,  it  is 
not  a  bonajide  transaction,  not  what  it  purports  to  bi- — 
in  appearance  it  is  one  thing,  in  reality  another;  and  the 
true  eufpiiiy  always  is,  if  the  transaction  is  in  reality, 
what  it  purports  to  be  or  not.  The  true  answer  is  to  be 
collected,  not  from  jiositive  esidence  only,  fn  thai  is  sel- 
dom to  be  had  in  cases  of  fraud,  but  troin  a  carefni  atten- 
tion to  and  Comparison  of  circnmstances  :  and  every  tran- 
sacion,  whether  secret  or  public,  liy  way  of  volnniary 
aali-  and  puichase,  or  by  way  of  juilgment,  excuiion  :.n(l 
sale  nirtde  publicly,  when  auend'^d  by  circuinst  iin  es  suf- 
ficienily  indicative  of' fraui),  may  be  rendered  roid  by 
them.  JSo  possible  form  or  legal  ceremony  is  ex'-.npt 
from  scrutiny  when  suspecteil  of  fraud,  nor  frinn  lieiiig 
made  void  by  it.  The  law  has  been  so  enlaigeii  from 
tinie  to  time,  tor  the  purpose  ofdeteciing  and  oltviaiing 
frauil  in  all  shapes,  ihat  ii  is  n.w  conipftent  to  pro((n<e 
the  effect  of  rendering  void  any  tr msictions  with  which 
fraud  is  mingled.  Tlie  Ligislatme  at  a  \ei-\  eai-ly  pe- 
riod, were  oliliged  to  fix  ilnir  attenlion  upon  llie  .'mii- 
tioiis  of  men  III  invidved  circiunst  mces.  Couvtyaocr.s  of 
estates,  in  trust  fir  the  grainor,  first  call-il  tin  ir  .iti.en- 
tion,  and  they  Hjiplied  a  remedy  by  the  50th  Edw.  3.     3 

62 


492  Haywood's  reports. 

Oct.  1796  Jieev.  401.     Aftpi-  tliis,  tlioii_e;l»  nn  trust  was  expressed, 
N^'^'"^'  til-  s;iMH'<ir  took  tlie  profiis  unrwiih-iiaiiilini^  Itic  rmivi-y- 
iiiicc — this  »\sit  WAS  rfiu'diod.     3  Reeves  176.  174.  173. 
2  Rd.  2.    Dt'btors  brtixik  ilirmselves  to  pri\ile,<fd  plnces, 
by  ti.p  supeistitioii  'if  the  tini'S  tlioj    rmild  not  l>e  taken 
from  llietii  e — this  nl«o  whs  reni'died.    ZRd.  2.    St.  2c.  3. 
Tlien  camp  the  3d  H.  7.  c  4.  makiiiff  all  t^ifts  in  tinst  fur 
tlif  d.ivr,  \oh\.     4  Reeves  140.  141.     Then  thi-  1  th  EL 
C.  5.  inii'iKhd  t<»  iMi-rlinn  rvi-rv    posnible  case  of  fraud  ; 
and  l.isti}  our  own  ai  t  ol'  1715.  c.  38.     So  scdiciiou-.  have 
diflR  rent  Lpi;i-.l.ttiires  been  to  suppress  fraud  in  whatever 
sh.ip'   it  ma_v  rndi-avor  to  ronrral  ilsell.      The  endeavors 
ol  the  L'Sislatuip  havi-  been  seconded  by  the  courts  of 
juhiicf  ill  interprptiii.tjtlipsf  several  acts.    The  rule  of  in- 
terpie'atioii  has  always  been,   to  jjiie  the  niosi  extensive 
opeiatioii  to  these  acts  in  suppiession  of  fraud  ;   so  that 
,       •.     at  iliis  day,  although  a  conveyance  may  jiui-porl  to  be  ab- 
^       •'    solute,  jet  if  any  circuuistaiicp  attends  it  from   whence  a 
jury  may  reasonably  believe  it  to  be  fraudulent, ii  is  void. 
Thus  if  a  man  conveys  by  teoffmeut,  and  still  takes  the 
proliis,  the  law  deems  ita  mark  of  fraud— the  i  onvevaucc 
is  noi  «hai  it  purpi>rts  lo  be,  and  is  vnid  if  the  jury  will 
find  it  I'randu lent.     3  fiac.  .^6.  603,  6  4.     If  a  man  indebt- 
ed, conveys  all  his  |ir' peity  to  one  rd"  his  crediioi's,  and 
yet  continnes  in  possession  and  uses  it  as  his  >i\vii,  it  is 
fraudulent.      3  Re.  81.      If  the  debtor  has  _s;iiods  to  the  va- 
lue of  twenty  pounds,  anil  five  several  ci-editors  to  tlie  va- 
lui   of  "wenty  pounds  eacli,  and  he  conveys  to  the  first  cre- 
diioi-  liis  effects,  upon  a  secret  unst  that  the  creditor  will 
deal  favoiably  with  him,  and  lei  him  have  the  use  of  ihe 
go  'S  or  some  part  thereof,   it  is  fraudulent  ;    or  )vhere 
till  seller  continues  in  possession  iioiwithsiandint;  the  sale. 
Pre.  Cli.  285.     Or  where  the  debtor lonveys  all  his  estate 
withnit  exception  of  any  part,  the  j^enerality  of  the  con- 
veyame  induces  suspicion,  and  is  evidence  of  fraud.      2 
BacM.  604.  605.     Oi  if  the  seller  roiitiiiues  in  p-s-^es- 
sioii,  and  is  to  aci  ouot   annually.     2  Bac.  M.  60S.     Ur 
'where,  'hough  a  valuable  consideration  he  given,  the  con- 
veyance is  not  bonujide,  but  with  a  view  to  defeat  some 
Ciedi;i)i-  ..r  purchaser.     Corop.  43>i,  434.     Or  where  a 
mail  hi  iiig  sued  and  issue  joined,  before  trial,  coiiveys  to 
a  third  person  to  the  use  of  his  sou,  with  a  proviso  to  be 
void  lip  n  'eniler  of  a  small  sum  by  th'  grantir,  who  still 
CO         les  to  t  ike  Ihe  profits.     3  Dyer  294.      Or  where  a 
prim.ij[>al  grants  to  his  surety,  before  the  surety  is  dam- 


Haywood's  reports.  493 

aged.  <o  tlie  prejudirc  of  aiiotlipp  person.     3  B</er  295 Oct.  1796. 

Or  wheip  a  rreiliior  has  his  exfcutioii  levied,  Hrid  ordfrs  -^"^'"^^ 
the  sale  fi>  he  <lelHjed  t<>  the  prejiidire  of  other  credit. .rs. 
1  ffils  44.  Of  where  a  iamlloril  rlist'uins  ih-'  fiUher's 
goods  aiiil  'iclis  them,  and  the  sun  imrrh  ises,  and  Hie  fa- 
ther continues  in  possession.  Pre.  Ch.  233.  All  th.se 
and  the  like  rircumstanres,  are  the  indicia  offriiiid  ;  and 
noMi-  of  them  stronger  'haii  that  ofth.'  foimer  owner  still 
continuing  the  possession  after  a  sale. 

In  *he  present  rase,  Jtihn  Cnx,  the  dehtor,  «as  conti- 
nued in  possession  after  n  seizure  by  tiie  Constahle,  un- 
til it  biciinie  necessary  to  sell,  to  suppress  the  clamor  nf 
thi'  neighb<Hlio<id.  Alter  the  sah'.  hi^  brother  was  made 
the  agent  of  the  creditor,  and  he  is  still  continued  in  pos- 
session, until  the  excution  of  annther  creditor  is  levied. 
Then  the  former  pnrrhaser  inter|»oses  his  cl;iim.  and  Mrjis 
to  the  t)rother,  for  which  he  has  never  received  any  thing, 
and  iminediatety  afterwards,  John  Ci.x  is  in  possession 
again,  exchanges  the  horse  asliisovvn,  receives  money  (428) 
as  the  diffi  rence  of  value,  v\hich  he  never  acctHinli'il  fir, 
nor  has  ever  since  been  letjnired  to  accoutit  for — so  ihat 
from  the  time  of  the  livying  on  'his  horse,  to  tlie  time  of 
the  sale  to  satisfy  tlie  last  execution,  Hie  tiehtor  has  con- 
tinued po-ss'^ssion  all  but  a  few  days,  dining  vvhicliit 
was  thought  proper  the  brotliei-  should  keep  him,  till  the 
suspicitms  and  clamors  of  the  neighborhooil  hud  subsided. 
Tiii-se  circumstances  appear  to  me  to  be  rompli'Tely  ade- 
quate to  thi-  proof  of  frauil  between  these  peis.ins.  Tliey 
shev\  the  property  was  not  intended  to  pnss  into  the  cre- 
ditor for  his  iiwn  hem  fit,  hut  that  the  use  was  to  be  foi  ihe 
debtor,  to  the  exclu-ion  of  the  claim-;  of  other  credi'ora. 
But  say  that  these  circumstances  are  not  -.ufficient.  iti.fe 
is  still  another  which  sliens  tlie  riglit  the  Constaltle  had 
to  seize  ami  sell  Uie  horse  gotten  in  exchange.  John  ex- 
changed tlie  first  mentioned  horse  as  his  own.  and  recei- 
ved the  other  as  his  own  ;  he  did  not  act  as  the  agent  o£ 
liis  brother;  the  prop'-rty  therefore,  .>f  the  la' ter  horse 
vested  in  him,  liowevei'  he  miglil  be  li.ible  to  his  broi tier's 
action  f..r  disposing  of  the  other  ;  and  Hieii  he  jn'operty 
thus  acquiicd,  was  clearly  liable  to  Williams'  exei  'ition 
the.,  in  the  hands  of  the  officer.  It  is'-ned  .h  .'9'!i  Sep- 
tember, 1792,  .ml  the  excliiins;e  to'.k  pi  e  ftrwuds, 
•whilst  the  execntion  was  in  the  liainis  .if  ihi'  llicei .  The 
law  is  clear,  that  goods  arc  bound  from  the  teste  of  th& 


494  hAlYWood's  repotits. 

Oc  ir96  expciition  ,•  and  'hut  the  excmtion  will  so  attarh  upon 
*"^'"*'"^'  them  as  to  disHlile  tlie  dibtor  from  spjline;  tlicni  iiftfr- 
wanis — iliey  will  Me,  liable  to  be  seize«l  io  th<'  li;iii(lsofa 
vend<T.  JTsp.  '92.  I  JWb.  188.  Cro.  Eli%.  \74.  4AQ. — 
In  which  latter  rase,  the  .qnods  were  sold  the  ^^tnic  day 
the  writ  of  pxpciition  bore  teste  ;  and  thniiech  in  general, 
there  is  n<>  prius  ov  posterius  in  the  same  day,  \et  in  sup- 
picssion  of  ti-HUil,  the  exrcution  was  construed  to  have  is- 
sued before  thi-  sale,  and  so  tlie  sale  was  void — therefore 
in  the  present  rase,  as  the  exenition  attarhed  upon  the 
horse  the  instant  he  beranie  \he  property  of  the  debtor, 
the  officer  was  well  justified  iu  selling  him. 

Per  curiam — The  _a;oods  are  honnd  from  the  teste  of  the 
wrii  of  exi-cuti(»M.  but  that  rule  wilt  not  apply  to  ilie  pre- 
sent CHse — John  acted  as  the  agent  'if  his  brother,  who 
havintj  approved  of  wUA  he  did.  ratified  the  iraiisaciioii 
ab  initio — so  thai  the  pi-oprrty  of  tlie  latter  horse  passed 
to  George  Cox,  and  not  to  John,  if  the  first  horse  leally 
"Was  George's — as  to  that  the  court  differed. 

Judge  Williams. — The  circumstanres  do  not  amount 
to  proof  of  fi-rtud — ihi' possession  wliich  John  had  after 
(429)  the  purcltase  by  his  brother,  is  not  to  he  taken  into  con- 
sideration, tlie  brother  having  a  right  to  indulge  him 
with  the  Use  of  his  |)roperty  as  hi-  thought  proper.  As  to 
the  possrssion  he  had  alter  th<"  seizure  by  the  c<rirstable, 
and  liet'ore  the  sale,  that  was  l>y  the  consent  of  tire  con- 
stable, who  was  atrswerable  if  the  property  was  not  after- 
wards Ibrthcomiirg.  It  is  the  rrsnal  jiractice  with  offirepB 
in  ihi»  coirnii'y,  who  seldom  i-emove  the  properly  brfore 
the  day  of  sale,  unless  whei'e  tliey  suspect  the  Defendant 
will  r'emovp  out  of  the  »aj.  As  to  the  possessioir  he  had 
after  the  purchase  by  Collinses  agent,  that  was  without 
the  privity  of  Collinx — no  part  ol  Iris  possi'ssion  appears 
to  have  been  cornirrued  by  the  consent  of  the  crrditnr, 
and  ii:  that  par  tirnlar  differs  widely  from  the  possession 
mentioired  in  Twigve's  case,  and  the  other  subijequent 
cases  grouirded  rrpon  it. 

Judge  Hatwoou. — All  the  circumstances  subsequent 
to  tire  sale,  are  lo  be  taken  irrto  corrsirleratioir  as  explana- 
tory of  tire  real  state  of  iln-  precedent  Irairsactroirs — the 
possession  of  Jo/ui  always  coniirrued — George  gave  nothing 
ftrr  the  horse,  though  a  >  iliiable  coirsidcfiiirori  was  pre- 
tended and  held  up.    The  debtor  having  used  the  hurso 


Haywood's  heports.  495^ 

as  his  own,  and  ilispnsrd   •>(  liiiii,  arc   visible  marks  ofOcM?y6. 
fraud.     Tlir  jur^  I'liund  for  tlie  Plaint ifT.  \^~v~>>m/ 

Note. — U;;in  thf  question  of  (raud,  ice  Hotlines  \.  Blount,  and  the 
note  thereto,  ante  414. 

State  V.  Norris. 

A  motion  to  postpone  a  trial  foi-  murder,  on  account  of  the  (jreat  pub- 
lic ■  xcitemt-iU  a;;uinst  tlie  prisomr,  was  ivfused.  WitniAMS  and 
Haywood,  JuilgcN,  iliffcred  as  tothe  qu.  stion,  w  liether  i  jnrorruuld 
be  isked  on  oith,  w-ietlicr  lie  h.idfxprc-sseil  an  opinion  untav'ir4bly 
to  the  pi  isunn-.  The  Slate  may  disrreilii  its  own  witiirss  by  prov- 
ing til  it  the  witness,  on  fom.er  occasions,  had  given  a  ditTcient  ac- 
count ol  the  transaction,  from  thai  which  lie  rtlates  in  court.  A 
person-who  was  violei  tl\  abused  and  beaten,  made  his  escape,  ran 
to  his  uwii  house,  eigiit>  yards  oft',  got  a  knife,  ran  back,  and  upon 
meetiiii,'  with  the  dtceascd,  stabbed  him.  It  seems,  tiiat  he  is  only 
guih\  (it  iTianslaiiglitei'.  11",  upon  ihe  stcoiid  iiieeting,  the  prisoner 
had  disguised  the  fact  ol  having  a  weapon,  for  the  purpose  nf  in- 
ducing the  dece  sed  to  come  wiihin  his  reach,  the  killing  would 
have  been  murder. 

Indictment  for  (lie  murder  of  J^alhaniel  Daves,  and  not 
guilty  pleaded. 

Tlip  prisonei'  was  biouEjIit  to  ilie  bar  to  take  bis  trial. 
Mr.  Hay  read  a  paiagiapb  from  a  paper  iirintid  in  this 
place,  and  circulated  on  Monday  last,  stating  the  Ii'imi- 
cide  committed  by  tlie  prisimer  in  terms  of  a_L'j;raval"!M  — 
and  moved  on  that  account  far  a  postponennnt  of  his  trial, 
apprehending  tiiat  the  public  mind  was  too  much  iiiitated 
at  present,  f.ir  the  piisoiter  to  bnve  a  fair  trial. 

Judgf  Williams. — The  pr(i|)le  in  ihis  country  do  not 
takr  for  truth,  every  thing  that  is  puhii.slird  in  a  news- 
papei'.  The  jury  will  know  they  are  to  begovcrnctl  only  by 
thf  evidence  and  the  law.  I  ti'ust  no  one  will  he  so  much 
prejuiliced  against  the  prisoner,  as  lo  be  led  to  an  unjust 
condemnation.  It  will  be  the  duty  and  the  business  of  the 
court,  to  see  that  be  has  vwiy  advantage  the  law  alhiws 
him.  It  is  not  to  be  apprehended  that  ii  Jury  of  this 
Conniry  will  do  him  wicmg — their  h'.imaiiity  i-  proverbial. 
Judfte  Hatwooi). — 1  tlisappittve  highly  of  thepiihli(  atioii 
— the  cause.  However,  is  in  course  for  trial,  and  must 
couM'  oti.  The  clerk  began  to  call  over  the  jurois,  after 
intoiming  the  pi  isooer  these  were  the  men  who  were  to 
pass  upon  his  trial,  and  that  be  must  chalh  nge  them  if 
he  thought  propel-,  as  they  came  to  the  book  lobe  sworn. 
Jlr  Uay  said  the  kil!iii,;j  ni  Diives  ly  Hie  piisMiier,  had 
been  a  sub)ect  of  very  geneiHl  conversation;  that  the 


(430) 


496 


HAYWOOD'S    nEPOKTS. 


Oct.  1796.  fgpf  j,j,,]  {,ppj,  rpii,(,.j  j„  jj  ne\vs|)rt|)Pi'  under  a_^.jjravatiitg 
^^^"^^^  ciirtiinstaiires.  and  tliiiuji;li  tliat  publicHticni  niijj;lit  not 
have  been  mado  witli  a  view  of  |ii'p-iirru|»ying  the  mind 
of  any  one  wlio  whs  to  take  a  part  in  the  trial,  Vft  in  re-  j 
ality,  it  tuny  have  had  the  effert  nf  peejudicing  thepiiltlic  ' 
mind  in  (jeneral  against  tlie  prisoner-  :  tdai  he  had  but 
too  much  reason  to  appi-chend  it  had  produced  stich  ef- 
fects :  hf  thert'l'oie  nmved  when  the  iir'isoner  obji-cred  to 
a  juror  propter  effectum,  or  (or  favor,  as  it  is  railed,  that 
the  juror  miglit  hf  I'xainined  upon  oath  whether  he  had 
expressed  an  opinion  uuf<<vi>iablr  to  thr  prisoner,  as  other- 
vise  it  would  be  difficult  for  hint  In  produce  any  satis- 
faciory  pruof  of  the  fact,  haxiiig  been  ronfine'l  and  visiied 
only  by  one  friend,  and  not  knowitii;  until  the  nioineut 
the  juror  is  oflT'i-rd.  whe-ther  or  not  that  person  would  be 
upon  the  panel.  Gi-eai  part  of  ihe  jurors  being  lal«-sinen, 
summoned  this  morning  since  the  sitiirtg  of  the  court,  had 
he  ever  heard  of  any  man  haxing  expressed  ;in  unfavora- 
ble opinion,  not  knowing  he  would  be  summoned  as  a 
tal''S(nan,  it  is  i  o'  lo  be  exiiccted  the  prUoner  r(mld  be 
prepared  to  pro>e  his  exception.  ImweNer  tiue  it  might 
be,  unless  it  could  hi-  sujipused  he  had  prepired  hiin-elf 
to  support  hisexcep'ion  ag^tin-t  <-\ei>  man  w  h  had  given 
such  opinion,  and  thai  would  be  unreasonable.  Mr.  Jones 
opposed  t'le  motion,  saying  there  was  no  pn-ced'-i.i  fop 
such  a  prr)crdiire,  and  lie  hoped  the  coui't  would  iioi  now  ' 
make  one  for  tiie  first  time  in  lavoi-  n|  this  prisoner,  who 
shiiuld  be  trit'd  as  all  other  prisoners  have  been. 

Judge  Hatwooo — I  do  not  ■'  presi  iit  recollect,  ever  to 
have  seen  •-ncli  a  piaciicc,  and  1  am  induced  to  think 
there  is  n>  precedent  "f  tjiis  kind.  Judge  WiLLiiMs — 
therr   is  nnnr. 

Mr.  Tiiylor  then  ciied  3  Bl  Cnm.  363.  A  person  about 
to  be  swoin  as  a  juror,  may  hr  chalh-  gid  lor  any  of  the 
causes  there  staled  ;  or  even  when-  the  chalh-iiger  tiath 
no  princip.il  cause  of  rhallenge.  but  only  some  cause  of 
suspicion,  the  validit*  of  «hicli  must  br  left  to  triers. 
H<'  ills-  cii  d  3  BL  Com.  o64,  wln-re  if  is  laid  down  from 
Co.  LitI  158  6.  :Int  a  jiiiO!  may  himself  lie  examined  on 
oai.li  ol  voire  dire,  with  regard  to  such  causes  of  clial- 
r.-.N  lei)ge,as  i.  e  not  lo  his  dishonor  or  discredit.  Healsorited 
^  ^  A  lil.  Com.  352.  'Wi'  re  i(  is  -aid.  ilie  pris  oier  maj  have 
the  ...atitr  '  liallrng  s  fir  Cause,  in  a  criminal,  as  the  Pi  iin- 
titf  or  Defi'id  >ot  m  •}  in  a  i  ivil  i  ase,  and  where  a  ciial- 
leiigu  propter  affectum,  is  mentioned  as  one  of  tliem.    He 


Haywood's  hepokts.  497 

argued,  that  tlip  »>x|irc,ssiii.s;  an  oiiinion  by  tlip  person  of- Oct.  1796. 
fei'iM)  lis  .1  jufor-,  if  not  a  |)i-inrip,il  catisp  of  ihrillcuge,  as  >^'^''">ii' 
lie  tliiiiia;hi  it  was,  at  loast  is  siirli  a  raiise  as  inij^lii  rea- 
snnablv  iiidiico  a  siivpiri'iii  of  his  not  l)riiis^  indifffi-eol  and 
impariial  towards   Hit-  prisoni-r ;    and  if  a  prisoniT  in  a 
criminal  case  had  a  ri;j;tit  lo  except  lo  vi  juror,  siisppcfiiig 
liini  to  be  unfavorable,  there  must  be  some  niod">  oCtiying 
ami  disroxeriiig  the  trnlli  of  tiie  exeeption,  and  there  was 
no  ri  asoii  in  a  criinin.il  case  for  resoitinq;  to  a  diffefent 
mode  of  trial  from  tliii  used  in  a  ri\il  one;    a-id   if  on  a 
ciiil  case,  for  the  poepo-se  of  i-i-aehiug  the  disposition  of 
the  juior  towards  thi-  party,  the  law  would  suffer  a  juror 
to  be  imeri'ogated  on  liis  oath,  with  respect  lo  the  truth 
of  (he  Ciiiise  aliei^cd,  to  shew  him  not  imp. irtial,  it  is  equal- 
ly necessary  tliat  a  prisoner,  where  life  is  in  daos^er,  and 
for  whom  tiie  law  profrsses  so  inuili  tenderiii'ss,  should 
be  also  entitled  to  have  his  excepiion   tried  in  tin-  same 
way,  and  to  the  same  means  of  in>  estii^atin.;^  it.     One  of 
those  means  is  undoubtedly  the  oath  of  the  juror  himself  j 
and  why  shall  not  a  prisoner  have  tli>'  oaib  of  a  juror,  as 
well  as  a  Plaintiff  oi-  Dtfendant  who  has  only  some  tri- 
fling propi'rly  pei-liips  in  question  ?      No  inconvenience 
is. brought  upon  tlie  joror  by   the  question  to  be  asked, 
more  than  in  a  civil  case:   lip  will  not  be  retpiired  to  give 
an   Miswer  to  any  question  tending  to  criminate  or  d''!'aine 
himself.     It  is  a  very  easy  task  for  him  to  say  whether 
he  has  deliveri'd  an  O|iiniou  U|mn  the  case  of  the  prisonei" 
or  not.     Is  there  any  man  here,  who  were  he  in  the  situ- 
ation of  tlie  prisoner,  would  not  be  discoiic<'rte(l  to  be  tri- 
ed by  [)ersons  he  suspected  had  already  condemned  him  ? 
The  motion  ot  Mr.  Hay  lannot  be  an  improper  one,  or 
the  law  cannot  be  said  to  iiave  that  compassion  and  hu- 
manity for  prisoners,  which  it  so  much  boasts  of.     It  is 
of  veiH    little  consequence,   whrtlier  or  not  the  practice 
of  our  cmiris,  hath  been  known  to  conform  to  what  is  now 
asked  for  by  the  prisonei';  few  cases  perhaps  have  been 
known  to  require  the  same  caution,  and  lor  that  reason, 
it  may  not  have  been  taken.     The  quesiion  is,  does  tiie 
law  allow  ihe  prisoner  such  an  objection,  or  such  a  means 
of  discovering  its  truth  or  falsehood  ?     I  think  it  does  al- 
low of  boMi,  ;tnd  must  insist  on  (hem  for  the  |M'isonir. 

Judge  Haywo  iD. — Upon  reflccii  >n,   I   am  of  opiiii(m    (432) 
the  01  ition  is  proper,  and  (lie  jier^oii  olTcred  may  hv.;,iily 
bo  iHterrogdtoii  on  oath,  as  to  any  unfavorable  opinion    ■ 


498 


HAYWOOD  S  REPOnTs; 


Oct.  1796.  |,(.  ]|a5  pxpn'sscd  ai!;aiiist  tlie  prWomT.  I  can  see  no  rea- 
^"'''"^'^'^  soi:  why  tlio  fxception  is  imt  allowable  as  well  in  a  <i-imi- 
iial  as  ill  a  cimI  caso,  nur  N\liy  lip' juror  should  bp  sworn 
ill  a  civil  rase  and  not  in  a  rriiiiinal  one.  It  is  rather 
more  necessary  in  the  1  ilter,  as  it  is  of  more  importance 
t<i  the  prisoner  conrerncd  to  Itave  a  s^ood  opinion  of  his 
jury.  If  a  piisonei  is  .tt  all  entitled  to  the  pi'lvilei^e  con- 
tended tor.  it  is  as  necessarj  to  allow  it  in  tlie  rase  be- 
fore us  as  in  any  other.  There  is  reason  to  suspert  that 
the  piiblicatiiiii  just  spoken  of.  'nay  have  had  some  influ- 
ence upon  thi-  public  mind,  unfavorable  lo  the  pii.soner. 
Tlie  horn  cide  wiih  which  he  is  ciiarj^ed,  has  taken  place 
in  this  lown  but  a  few  diiys  past.  It  is  to  be  feared 
siniic  ferments  are  caused  by  it,  r  ndering  it  proper  foe 
the  court  to  be  cirrunispeit  and  careful  that  the  prisoner 
be  nwt  piejudiced  by  the  violence  of  Hie  cuiient  opinion. 
Vn'v  should  act  as  couii'^el  for  ihe  pris(nierso  far  as  to  see 
thai  he  has  a  fair  triMJ,  and  ihat  he  is  not  denied  the  be- 
netits  (he  law  has  provided  for  his  defence  ay;ainsl  injus- 
tice. 

Judge  Williams. — I  cannot  think  the  prisoner  is  en- 
tUh'd  to  inierroa;are  a  juror  <in  o^th  as  asked  (or.  This 
man  should  b-  tried  asHJI  others  have  been.  Why  sliou4(l 
we  ext<iid  privileges  'o  liim.  that  were  not  grant.d  to  the 
mai  tried  vcsterday  for  niurd(r  ?  That  man's  life  was' 
as  <hai'  to  the  public  yesterday,  as  tltis  man's  is  to-day, 
and  we  allowed  no  sui  h  piivil.ge  to  him.  I  have  never 
known  such  a  thing  e\en  aski  (I  forbefore  in  any  rriniinal 
casi .  '['lie  otti(  e  of  a  Judije  is  indfcd  a  very  arduous  one 
— 1  leei  sensibly  now  dis-igr- e.lhl^  it  is  to  sit  up'oi  a  trial 
when  the  life  of  a  fellow  ( itizcn  is  in  jeop,ud_>  ;  but  wlnn 
we  once  undertake  it.  we  should  disrliarge  it  laiihfully, 
rcjiiirdlessof  those  svinpaihi^ing  feelings  for  the  prisoner, 
which  are  so  apt  to  be  expeiienced  on  such  ••ccasions — 
^Ve  are  not  to  be  inHneined  in  any  ri'speci  b»  them.  It 
is  not  a  true  position  hat  we  are  ro  be  the  frif nds  of  be  \ 
prisoner — «e  me  to  >,ee  tliai  he  has  a  fair  trial,  jhiiI  this 
is  all  iliat  is  requiitd  of  u-. 

Jud.^e  Hatv\oou — i  am  intrusted  in  some  measure  by 
m)  I  ountry  witli  tins  man's  life — lie  mav  he  a  bad  man 
*  and  deserve  deatli  ;  but  I  «ill  imi  piejmlge  him,  neitiier 

will  I  I'.i  any  eiiitiily  ( aiise  b"-  pievaiieii  up'oi  to  deny 
hini  a.'^  pcivilegi  he  is  etiiiiled  lo.  I  iliink  up'Oi  i  oii- 
sideraliun  he  is  entitled  to  that  whicli  bis  counsel  ask  for  ' 


Haywood's  beports.  499 

hiin  ;  and  were  the  wliolc  world  lure  present  to  demand  ^'^*-  ^''^^' 
Ills  cxcculioii,  I  W'liild  nut  refuse  him  an   .idvaniase  tiijit  -^^"^J* 
should  be  niru  i  d>  d  lo  liiiii;  w  hilnt  I  sit  here,  the  publir  cry    (433) 
shall  never  seduce    or  ini)ir-l   me  into  the  adoption  of  a 
nieasiut  niv  Jiidt;ment  disapjn-oves. 

jyir.  Hay — In  m'der  to  ti;et  over  the  embarrassment  this 
molimi  IS  likely  t"  produce,  Hiid  the  warmth  it  has  (jiven 
occasido  111,  I  propose,  that  whei-e  a  jiiior  is  rh.illenged 
propter  affectum,  or  tor  havioa;  expressed  liis  opinion,  liis 
name  sli^ll  he  set  down  and  no'cd  aS  >ne  cballeiised  f(H« 
cause,  and  that  the  cl.rk  then  pioceed  willi  the  panel; 
and  if  the  panel  shall  lie  gone  ihron_a;h,  and  the  Jury  not 
conipluled,  that  then,  we  consider  of  tlir  Jurors  wdose 
names  are  noted,  and  liow  the  •  xc  plion  sh;i(l  be  ti'ii'ii — 
Periiaps  we  may  get  a  .jury  before  tlie  pmel  is  i^ooe  ihro' 
and  Mien  it  \\ill  not  be  necessary  to  consider  furl  her  of 
the  exceptions. 

Judge-  Williams — That  (ir  >posal  is  a  propi-r  one — I 
think  il  should  bi-  adopti'd.     Judge  Haywood  assciited. 

The  Jurors  in  tiie  panel  were  then  offered  to  the  pi'is- 
oner,  and  a  Jury  was  coinphted  ;  and  they  were  sworn 
and  charged   wilh  the  prisonei". 

The  eviihnce  mi  the  tt  i*i!  was  as  follows  :  On  Satur- 
day night,  JYorris  and  Young  c.iine  ro  the  house  of  Mrs. 
Rainsay,  wh  re  W'-e  Daves,  Dudley,  Ramsay.  Camphell 
and  oihers.  Young  renained  :v,  ib  \>\  zz  «,  JVorri^  c  inie 
in  and  sat  talking  wiih  Ramsay  i'n-  some  time.  Camp- 
bell went  into  the  (iiazza  to  Young  k\ho  \v:is  inioxir  ,'cd. 
He  talk<d  ni Diivcs,  snyinghe  iindeistool  Daves  iiad  Slid 
he  could  whip  JVorm,  and  desired  Campbell  to  tell  htin  to 
come  out.  Shortly  after  this.  J^orris  came  out.  They 
mined  towards  the  door ;  Campbell-  .vent  in  leaving  Young 
and  JVorris  in  the  piazza,  and  udd  Daves  to  come  onr. — 
Daves  .>ud  Dudley  pnlle'l  i.ft"  iheir  doriies  and  w-  nt  into 
the  |;iazz  1,  Yuuug  and  JSCorris  bad  gee  oflT.  Dudley  aud 
Daves  «ent  indi  the  slroei,  and  JYorris  ctme  v\alking 
from  ihe  iippei'  par)  of  the  to«n,  down  ii. wards  his  own 
lions.,  passing  iliai  of  Jlrs-  Ramsay.  Daves  and  Dudley 
went  Inwards  liim  and  inei  bun,  and  Dudley  said  <o  iinn, 
you  came  here  to  lu-eed  a  quarrel.  JYtirris  answered  he 
had  not.  Daves  reiiiied,  you  did.  J^Torris  aiiswere<l,  he 
did  111.1.  i?<cyes  ^aid,  you  are  a  danineil  liar.  JWirris  re- 
plied, whoever  etays  1  came  here  to  breed  a  nut,  is  a 

63 


500  Haywood's  repouts, 

Oci.  1796  liAtniied  liar.  S;ii<i  Daves,  you  are  a  ilainncd  liar,  and 
"■^"^^'^^  li;|i|ii(l  up  Ills  ImcIs  Hiid  tlirc«  liim  on  tliogtonml.  JVur- 
7-j.s  luse  ;tiiil  slei)ju'(l  t  WHids  liim.  Daws  -ii-tick  Mm. — 
J\'orns  'li'S'icd  I'ampbeU  lo  iriiv<'  noiicc  ol  tlmt.  Dudley 
s.iid  'II  Daves,  in  will  luaki-  ynu  |)h\  f>f  that,  lake  s^itis- 
(434)  la(  li.ii,.  Daves  sw  ppid  i.>  iiiiii  ;iii(l  .t^ave  liiin  tliiie  or 
four  IiIm«s.  II |i  '11  w  i  'I'  ^''orris  ran  <iff  tnwaids  his  own 
lioi.-i .  Daves  a  iI  Dudley  walked  down  the  .stre<'t  rall- 
iiif;  lor  Yiiuiig,  >li'.  met  ilieiii  with  his  roat  oflT.  They 
deiii.xidid  "I  hull  iTIie  meant  Gt;iitin,c;,  and  why  he  had 
strip  :  hi'  iinswi-rrd  thai  he  wa-<  not  for  fii^htiiis;,  and 
th;4  lie  liiid  siriipid  t"  sei  Cap  pla*,  hearing  the  iltack 
Upon  ,\orris.  Al  this  lime,  the  w  itiiess  heard  JVorrissay, 
dainri  >'>ii,  \ nil  struck  ine,  did  ^oii?  Cinneon,  1  .iin  now 
read*  for  yon.  Daves  -aid,  you  have  a  slick  or  srnne 
\vi  .it'iiii  ><iii  Mant  'o  kill  me  with,  and  stepped  towards 
bini,  and  he  then  cried  nut,  I  ani  stabhed  Tlii'  wiiness 
ran  10  the  pl^^ice  wlieic  lie  was,  ami  he  Was  stahheii  on  the 
led  side  01  ht  b4ll3,  wiih  a  Wound  ihiee  or  lour  inches 
in  ici  _(;■  h.  U|inii  ihe  <r">s  e\  niiiiaiion  of  ijie  vNiinoss, 
he  said  Daves  kx  ked  :it  JSforris  ifter  he  fell  in  the  first 
conihat,  near  Mrs,  Ramsay^s  ;  and  ihat  JS''orris''s  house 
wa->  ahi.iit  fil'i^  vards  IVinn  the  place  where  Daves  was 
St.  hhrd  ;  iha'  he  h.d  jjnno  some  distance  helow  Jlrs. 
Ramsay's  to^ani  JSlw-ns's,  hel'ore  iliey  met  the  second 
tiiiie;  and  tli;ii  J^orris  was  gone  tiiree  m  loiir  minutes 
belore  heriturne  ;  and  that  the  fislniui?  happi-md  about 
an  hoiii  in  the  iii;;ht.  riiis  was  Campbell's  tesiiinony. 
I'lie  .  vidence  <'f  Youug  was,  that  he  iiiei  JVorris  at  ihu 
race-tfi'oiind  on  S.-iurda.v,  ai  d  rehuked  niiu  foi  quaerel- 
lin.a;  ilie  nijjii'  hifure  Willi  Daves.  J^orrls  answered,  it 
is  ;ill  sitthd.  W(  drank  toi^eliier  at  the  pull — it  was  i)C- 
casionrd  by  litiuor.  At  night  we»caine  down  by  Mrs. 
'Ramsay's,  he  askci  me  m  ^n  in,  hut  I  declint  il :  he  de- 
sired iiie  HI  wail  a  li'tle  tor  Kim — I  v\ai<ed  in  tiie  |ii  izza 
— Campbell  came  into  the  jiiazza — 1  walked  down  i|ie 
sli-et,  anil  ^of  just  below  Mrs.  Thompsim's,  s\h.r'  I  siw 
Mrs.  77iojii/)Si'H  slaiiding  ;  Dudley  i.ime'oui  hallowing 
fur  me,  i  .tn-wrred  him  and  jiull'  d  off  my  coat,  he  came 
up  and  I  aught  ine  It}  the  shoulder,  and  asked  if  1  had 
come  In  hrei  d  a  riot — to  which  1  answered,  i  had  not. — 
Daves  also  came  up,  and  immediati  Ij  afieiwards  1  heard 
lliui  .  i»  nut.  he  was  slaiibed,  and  liirningthat  v\  ly  1  saw 
JVorns  run  off.  I  think  it  was  eighty  jiards  fnnii  the 
place  wiiere  Dudley  auU  Daves  came  u|>  to  me,  and  wliei  c 


Haywood's  keports.  501 

Saves  was  stabtied,  fo  JVorris's  lumsp.     Dudley  ballowpd  o     i796. 
so  l'>ii<l  f'of  me,  t'la'  I  think  he  (instill  Ii^m-  Ikm'  ■  I'eaidtn  -^'x'^^/ 
JVTrriVs  It'iiiS' .     A  physician  w ho  attend' i|  Daves,  swore 
lie  di'il  ol'lhc  vvonniis  he  riCfivcd  that  niuht. 

Dndleij  drpcisfd.  tlat  on  Fiidii>,  liimselt',  Daves  and 
JVbrrisraine  tni^ethcc  int"  tovMi  IVoiii  the  i-<ci'  ^jfinnd — 
tiiai  Ihi'y  s'o|i|ied  h\  the  wnv  at  a  house  i>i  town,  aiid  uere 
dri<il<in^  tot^'ther.  A  conxe' sa'ion  nvisv  ab"iit  one  (435) 
Mcliae.  Daves  alnised,  and  J^orria  sp  ke  «il!  of  him. 
Some  warm  words  passei!.  /Ajvcs  pulled  off  his  rlotiies, 
and  went  down  stairsi.  hiddi'  i;  JVorn's  ti  (■(ilh)W.  A'oms 
remained  where  lie  was,  and  Daves  1  amc  in  askion  ^N'or- 
ris  why  Im' had  not  Colloweii  him.  JVurj-is  aiis^er'-d,  iliat  is 
not  the  way  I  mean  to  figiii — I  will  burn  poi\'Iei  \utli 
yon.  We  all  went  home,  and  next  moi-ninj^  I  oiet  J\"or- 
ris.  who  asked  what  had  been  ihe  in.  (iei-  l.isi  tiii;tit, 
saying  he  had  come  to  see  about  ii,  and  secmina:  lo  be 
uneasy  at  what  had  liapjiened.  He  inqnii-ed  fir  Daves, 
who  about  that  time  came  np.  They  ronv  ers<  d  tfj^rtl.er  ; 
Daves  said,  ii  was  youi-  (aulf,  hut  I  doii'i  cnv> — I  never 
bear  inali'e.  JVorris  nplied,  it  was  not  me  hutrtmi ;  let 
us  go  to  Dick's  and  drink  something.  I  proposed  they 
should  Hiiei  at  the  races  and  drink  together,  which  they 
agreed  to.  Al  the  I'ace-ground  he  (ailed  to  Daves  and 
myself  to  come  and  drink  with  him,  and  we  «lid  so. — 
Afier  drinking  togifher  we  parted.  After  dark,  at 
Itamsay''s,  JSTorris  came  in  and  sat  down.  We  sat 
down  to  supper,  and  J\''orris  was  asked  to  sit  down, 
but  declined  and  went  out — Campbell  was  missing — hut 
after  Hinjpei-  canie  in — Daves  asked  him  what  J^orris 
came  for  ;  Campbell  said,  lie  siijtposed  to  lireed  a  rioi. — 
Daves  ■■mh\  mysiHtoen  pnlled  off' (nii'  cloalhs  and  went 
into  thi'  piazza.  JVorris  and  Young  were  not  tlnrc. — 
Daves  called  out  for  them,  sajing  ihey  were  cowards  — 
J^'orris  came  up,  and  Daves  met  him.  I  went  off  calling 
for  roung,  lie  answered,  i  am  here  Daves  and  .N'orris 
bad  .siiiic  words,  and  Dares  trinpid  him  up.  JVorris 
rose  and  Daves  struck  him.  JVorris  riquiri<l  Campbell 
to  take  noiice.  It  v\asjusi  at  this  lime  1  heard  Young 
answer.  Ziuvfs  struck  three  or  four  more  blows,  and 
JVorris  ran  off.  We  went  to  Youvg  and  stood  talking 
with  iiim,  when  JVorris  came  up.  Daves  'uimd  and  «ent 
towiids  blm,  sayiog,  »ou  lia\e  g.  t  a  >(ea|ioii  or  a  siick, 
wliK  ii  JVorris  ijc'  icd.  Jlrs.  Thompson  called  out,  sa»  ing, 
JVorris  lias  a  sword  or  gun,  he  will  kill  you — do  nut  g^ 


502  haywood's  repokts. 

Oci.  1796  to  liim.  Daves  llo^^pv^'r,  and  JVarris  met  in  the  street 
^^■^'"^^  <)|)(iositp  lo  wlK'ie  wp  were.  As  th<7  mtt.  JVbrris  niitdc 
a  Illume.  Daves  ciifd  out,  he.  lias  stabbprt  inc,  and  fell. 
Toung  ;in(l  iiiyst  If  went  to  him — his  bowels  were  diiI — vvc 
caii-K'il  him  to  J^lrs.  Ramsay's,  ami  in  two  hours  lie  died. 
A'  tlie  last  nipptiiija^.  1  did  not  see  Daves  strike  befni-e  the 
stub  It  was  eighty  pr  an  liiindiid  yards  from  TAonip- 
SOJi's  ih'- pliicp  where  the  slab  w<s  s;i\en,  to  JVorris's 
h«)iise.  It  is  about  twenty  jaids  fidm  Mrs.  Ramsay's, 
f436")  when-  the  first  combat  whs,  to  Thompson's.  When  JV'or^ 
ris  iTturned,  he  ramp  runnint;,  iind  imniediatply  after  he 
gave  the  stab,  ran  off,  I  followed  liiin,  lint  did  not  over- 
take liitn,  Hnri  returned.  Wlien  JVbrris  ranie  into  ihe 
b>iuse  ai  Mrs,  Rdmsay's,  Daves  saiil  to  me,  Mrs.  Ramsay 
does  not  v*aiit  ,^orris  here,  you  had  better  ask  him  to  go 
out,     I  lejilicd,  iMi — he  «ill  go  presently, 

Mrs.  Thompson  denused  as  follows  :  that  on  Saturday 
niglii  she  WHS  sitting  in  an  riui  house,  and  lie-ud  a  great 
noise,  and  a  woman's  voic<-,  and  «aw  Mrs.  Rainsaij  in  the 
Slieet,  and  heaid  very  heavy  blows,  an<l  Mrs.  Rumsny 
sa3  ing.  Cousin  jRajnsoiy  don't  strike  too.  Just  at  this 
tiiiN-  Fwtng' came  to  hei-  v\ here  she  was  statiding  in  Ihe 
street;  she  iisked  who  were  making  that  noise,  he  an- 
swered that  Dudley  and  Daves  were  beating  JVorrts;  re- 
quested her  to  take  his  coat,  saying  he  could  not  stand 
that,  alluding  as  she  supposed,  lo  the  heavy  blows  that 
weie  heard.  Immediately  a  imhii  came  running.  Young 
asked  who  he  w,is;  he  siiid.  JYotris :  vvliatis  the  matter, 
said  Youitg.  don't  rnii.  JVwt/s  i'  |ilied,  I  can't  s'and 
thiee  rii-  four  men.  Vmmg  smd,  you  must  stand  ;  it  is 
cowartily  to  run.  I  will  stand  by  you.  Dudley  6i  Daves 
came  running  up,  and  J\rorrs  breaking  the  hold  Foung 
liad  on  him,  ran  off.  Foung  stepped  hack,  sajing  to 
Dares  and  Dudley,  slop.  Tliey  asked  him  whether  JVor- 
ris  h.id  come  b.\,  he  S'id  yes — but  what  is  Ihe  m  iitei  ? — 
They  said,  d<>  you  ^top  us?  do  you  want  to  fight  ?  IJe 
answeied  no.  Daves  then  came  tn  where  she  was,  and 
said  ,A''»rrJshad  abused  Mrs.  Ramsay  unmercifully,  and 
that  he  li.id  resented  it.  AI  this  time  Dudley  anil  Foung 
Were  in  the  street  in  high  words,  and  Mirris  laine  buck 
running.  Dudley  and  Foung  stood  sonu'  small  distance 
from  her  anil  Daves.  JYorris  siopt  on  the  olher  side  of 
the  stuet  and  sioid  a  shoii  lime.  Si  e  saiil  to  Daves,  do 
not  go  to  him  ;  perhaps  he  has  a  weapon.     Daves  replied, 


Haywood's  reports.  503 

damn  liim  ;  I  am  imt  nfi  id  of  liitu,  «  papnn  or  no  weapnn;  Oct.  1796. 
ami  vxpiit  roiiiid  the  oihers  li'om  Iier,  towai'ds  JVorris ;  ••'^''^'■^ 
and  said  ti>  «A"'rris,  liavejuiiH  weapnii  ?  he  iiii>v. fifd  lO. 
Havp  >Hii  a  rliib  ?  lie  answered  no.  Th<-ii  said  Daves, 
dn  yon  iliink  yon  ran  stand  a  man  n<ivv  ?  IF  I  can'i,  .sMJd 
,W»ris.  I  Itme  a  man  tliat  rati.  JVIjj-ns  tinn  ciird  not, 
sla'  'I  ffJIr.  Daves,  or  the  woisi  is  yoni"..  Si^e  flien 
heaid  two  oi- II  ne  l)Io\vs.  and  I'aves  crird  oot,  i  am 
stabb' d.  JVorm  I  e'iivd  a  sm-.i  II  distance  and  sioid. — 
Slie  sa"  liim  III)  more  afieiwai'ds,  thai  niiflit-  VN  lien 
J^orris  ii'fiiriied,  h<'  did  noi  a<Kanr<^  u|iiiii  Z)rtTes,,  hn!  or- 
dcietl  Daves, \\\>^n  he  advanced,  to  stand  iiack.  'I'wo  or 
three  hliii\s  pussed  liefore  the  st;ii),  and  she  thinks  (Vom 
the  mannei-  nf  Duves's  iidvancing  thej  wcrefjiveii  hy  him 
— In  went  tow. nds  .A'orris  as  if  s^dIii!;  to  »"nik  hioi. —  (437) 
She  heiiid  the  blows  that lirst passed  near •.1/rs  Ramsaifs 
— ihi-y  were  very  heavy. 

Sevri-iil  other  witnesses  were  sworn,  but  they  related 
noihin,^  material.  Mr.  Briggs  stud,  on  Sutnrdiiy,  the  day 
precedinj^  the  ni^ht  when  Daves  wa.s  stabbed,  he  told 
him  he  rxpecieil  lie  vvontd  hav<-  lo  fii;ht  ihaf  nisfht,  hut 
did  not  s;iy  whom.  Jlr.  Dick,  icciied  the  qiiiinel  be- 
twren  Daves  an*!  J\"(/rns  on  l^'ndav  :  at  which  time  Dud- 
ley saiii  to  Daves,  say  what  ytui  please  to  him.  if  yni 
can't  flos  him,  I  can.  An  old  la(t.>  swore  Daves  had  ob- 
tained a  jiidij'nent  on  a  warrant  aicainsl  souie  man,  and 
about  thi-ie  weeks  In  fMie  his  dealh  left  it  \^ithher,  tellins? 
her  to  keep  it,  and  if  any  accident  happened  to  hiiri,  and 
lie  should  ilie,  that  sIih  iiii,a;ht  collect  the  money — and  a 
day  or  two  aflei'  his  deatli  Dudlcti  came  for  it,  Ano'lier 
witne-s  said,  the  day  helore  yesterday  Diulley  w.<ssp  nk- 
ins^,  aft«r  roinlnj;  from  court  of  a  trial  loi  niuidir  wliich 
had  tiiken  place  Ihul  day.  and  of  (lie  acquit  lai  of  the  pri- 
soner, and  Srtid  upon  that  occasion,  I  will  bet  a-i  hundred 
pounds  J\'orris  w  ill  not  be  arquit'ed — if  he  should,  'In-  man 
■who  clears  him  oui;ht  to  b<  i.ui  in  his  pi. we  Another 
witness  said,  tnerr  were  broils  bi-Uvc  n  JS'orris  ;iud  the 
fainiiy  at  Dudley,  but  none  thallieknew  of  b«t>.veen  Dud- 
ley  '.ml  JVorris. 

Jones,  the  Solicitor  General,  then  moved  'ohave  leave 
to  in'rodiire  wiUU'Sses  to  prove  a  variance  between  what 
Mrs  Thompsou,  mv  of  i|i>-  witin'saes,  had  swoi-n  iti  cmiri 
anil  what  sill-  !•  'I  rehited  in  seviT;tl  cok v eisaiimis  to 
others.     He  admitted  the  rule  in  civil  cases  was.  that  the 


564  MAY  wood's  reports. 

Oct.  1796-  party  produring;  a  witness,  should  not  afterwai-ds he per- 
v-^v'^,  ini'trd  f.  distiedii  that  witness;  l>iit  tin-  nilo  h  d  m'ver 
been  ad»;  iil  .s  lie  knew  of  in  rt  imiiirtl  rasrs.  Itirivilra- 
ses,  the  |i;u-i\  ronvfisfs  wiili  llic  wit.iess  l»,  fdr-  his  inti'O- 
dnclion.  and  kmiw^  what  ho  will  swear  ;  and  is  scnei-al- 
ly  arqiixin!i-<l  with  ihc  rliafmier  of  the  witness,  and  with 
the  lU'iii'ce  of  ciedi'  he  is  eniitled  (o.  When  he  prndnces 
a  witness  to  the  oiir-t,  it  is  an  adinissinn  on  his  |iH>'t  that 
the  witness  is  crtdihh-,  as  he  rhiims  a  benefit  IVoin  the 
tcstiiiiini)  .  It  i-  pinper  in  snrh  ra>-es  he  should  be  liniind 
by  hi*-  admission,  hiit  tiie  nason  ol' that  rnh-  wiJI  not  ;ip- 
j)lj  to  ('liinin.il  rases,  where  thi-  i>eoseriiiioi(  is  cartied  on 
by  the  oflirei- of  ihe  puhlir.  not  a'  'he  instance  of  any  jiar- 
ticulai'  prosecutor'.  Tliai  pnhlie  officer  is  a  stranjcer  t» 
tlic  prrs(>n-  he  inoduces  as  witnesses — he  has  in  ;;eneral, 
noopp  irtiinity  of  knowing;  eillier  any  thiua;  of  the  charac- 
ter of  the  witness,  or  of  wliat  it  is  he  will  sweii*.  other- 
(438)  wise  than  as  he  Collects  il  fr'om  others  in  the  course  ot  con- 
versation. 

Hay  atid  Taylor  objected  to  the  wtti^npl  of  the  Solicitor- 
General  to  discredit  his  ow"n  witness — tliey  insisted  the 
rule  of  not  allowing  lhi>  to  hr  doite  in  civil  rases,  was 
equally  applicahle  to  ciiiiiin>il  om-s. 

Per  curiam — The  r-nlc  is  so  in  ci\il  cases — let  autho- 
rities lie  pr'oduced  to  'lio  \  Im^w  il  is  in  criminal  ones. — 
The  s»''i'l<i«ien  on  h  :li  sides  scairlied  loi-  anlhoiitie-.,  hut 
could  find  none.  Judge  ^'  ii,liams — 1  think  the  Solici- 
tor should  he  allowed'  n)  discrrdit  the  witness,  if  she  has 
varied  Iroin  the  I'elatiiMi  she  now  givrs.  Were  hi'  inii  al- 
loweil  to  do  I  his,  a  jirisoner-  and  his  friend,  might  tamper 
with  v\orihle-s  persons  to  swear  loi-  Ihe  j)i'isoiici'.  and  se- 
cure them  from  any  imin'iulimi'nt  of  iheir  credibiliiy,  by 
procurtng  them  lo  i-elate  in  |Mihlic,  a  story  lending;  to  es- 
tahlisli  the  guilt  <'f  ilic  pi  isoner,  and  by  tliat  means  cause 
them  lo  be  s-iminiMied  hy  tiie  public  oIKi  er  and  inlrodu- 
ced  Toi'  the  Stale;  und  v\  hen  sworn,  to  drpose  directly 
agiiinsi  what  they  had  (lublicly  lelated.  Wire  not  the 
Stdiciior  allows  d  lo  iriipeieh  such  e\  idence,  a  wide  door 
Wt)nl(l  he  opiMied  tor  the  ac(|(iitial  of  tire  pi-isoner- by  false 
tesiiniony — the  prisoner  would  have  nothing  more  to  do, 
than  <  ..u-e  his  witnesses  t-i  l»e  iulr-odtiied  on  the  pai't  of 
the  Stall — thy  migh  tlieicfou  pass  fm  nuth  any  falsi- 
ties lie\  niigiit  think  proper-  lo  utter,  it  is  a  \er'y  easy 
matter  to  procure  them  to  be  introduced  fur  the  State,  as 


Haywood's  reports.  505 

tiie  Solicitor-GiiifiMl,  not  lu-'ius^  iiniiMintcd  with  flic  wit-  0<^*-  '''ge. 
Mcssf-,  woiilil  ikiiik  it  Ills  duty  to  suminoii  am!  iolroiliice  -^~''''**-' 
all  sucli  jii'i-siiiis  lis  lie  «»s  i  ifurm  ''I  could  sweat*  any  thing 
aguitist,  tlir  prisoner.  Jnrlg  •  H\Twooa— Ni  ligli<  that 
can  bi-  till O'vn  on  this  suhj^-cl  should  li.i  I'xclddwi,  nor  a- 
ny  ini'at.s  li!i  iiiinicd  lo  pine  the  laii  in  its  true  p^ii^it  of 
view.  I'lic  v\  lines-  liiis  sworn  to  some  rii'cnnisriinces 
which  are  wry  material  in  the  present  ease  :  ,ui(l  if  uii- 
tnie.  fjiey  shonlil  be  fectified.  If  she  has  lelited  the  fact 
difTeieiitly  to  oiher  persoiis.  it  is  a  gOod  reason  for  giving 
the  less  credit  to  her  relation   now. 

The  witnesses  to  discredit  her  tcslimony,  were  called. 
One  of  ihem  related  the  story  she  told  a  lea'  d  lys  ago,  in 
whii  ii  several  circuinslances  iiovv  iiientioned  by  her  were 
omitted.  I'wo  witiii>-ses  we^e  calh'd  to  saiipurt  her  Cre- 
dit— ,j|,.y  ^;ij(]  ^in.  ij.jii  t,,i,i  f|„.  story  III  thi'ir  presence  at 
dift'eient  times  exactly  as  slie  iio-v  told  it  in  court. 

This  rloKeil  the  evidence  on  both  sides — a  sn.nrnary  of 
which  stands  tlpis  :  On  Satin  day  niglit,  JVorris  Ik  Viiung 
retnrninjr  tV'ini  rlie  race-,  JVo^ris  went  in  at  Mrs.  Ruin-  r,„„x 
siii/'s.  \\iiiN;  Voting  w'.iitedfii  Omi  in  tin- piizz  i.  In  the  '^'*'^-^) 
hoiis- ,  J\rorris  talkeij  wi  h  Rums  ly,  sitting  on  the  hed.  and 
supper  coming  on. iie  re'ii'"d  an  i  vventupthestrei-  — I'oiing 
g'uiig  (low  n.  Duilleij  \.  Daves  noderstamling  from  CaMp- 
hell,  they  had  come  tini  e  Vo  qn.trrel,  stripped,  .vimiI,  out 
calliii.i;  foi-  tiiem  and  saying  they  were  coa^rds — jYorris 
at  this  going  d.iwii  the  street,  passi'd  near  Mrs.  Ramsuifs 
not  far  (Voiii  wliicli  tlii-y  were.  Diives  accused  nun  of  co- 
iWiiig  there  to  lireed  a  riot — JVorris  denied  it.  Daves  iii- 
si-lei|  iijion  it.  (lid  proceed,!!  to  abusive  langu.iLje,  which 
JN'o.'Tis  letortid  and  Daves  repeated,  tiipiiini;  up  i»ts  heels 
and  kicking  ,il  liiiii  winlsl  on' 'he  ifidUnd.  J\'.<!ris  rising, 
Daves  strm  k  iii(U,  and  J^^orris  c  lied  to  Campbell  to  ( tke 
inline.  Diulley  ^Ucn  adv isrd  DaiJCS  to  lake  sa'islvicii m, 
and  Daves  sii-uck  JVorris  ilnee  or  (bur  blous.  JS'urris 
ran  oil' t, I. \  aids  liis  own  h.iise,  distant  frfini  Thompsoii's, 
which  v\as  twenty  yai<ls  Ic-low  Ramsay's.  Iif  y.  <  i>;l.tyor 
an  hundred  yard- — Dares  and  Dudley  >>eiit  '1  iwii  the 
slreei  to<\a.rds  TiwnpMii's.  w  here,  they,  t'lund  l''lJlt^^' strip- 
ped. Dddley  '-t"od  in  ihe  sti-it,  opposite  T/fnnps.-n^s, 
con\e-sing  sNith  Fnnng.  Daves  als  i  st.od  in  tii'  si  ef. 
Ml'. '•  TAom;)so»i's,  coiivi  ismg  with  Mrs.  Tliompson.  lYqr- 
ris.  ;iiier  an  absenci  ()|  ilneeorfour  iniiute.s.  ien,ined 
rmuiiiig,  and  as  3Jrs.  Thompson  says,  stopt  in  the  street 


506  HA V wood's    llEPOItTS. 

Oct.  1796.  ()p|)i)sit»i  to  tlipin — as  the  '>t)i-i'  wifm-ss  says,  lie  ran  up 
'^■*'"^^'**^  ti)  Dives  witlioiit  st(>i>pii):r — Daves  (lisr>veip<l  liim.  and 
\\ft  iiivvHids  tiiiii.  JIrs  T/.om/woK and  Dudiey  s.iv,  Daves 
eiiqiirt'd  wlieilirr  lie  Had  i  Aejipm.  i-liib  >)r  siji  k,  w  nrli 
JVorris  d  ■iiicil  and  thev  nut.  Campbell  s.i)-<,  J\''orris  cri- 
ed our,  (i.inp  on,  I  a-m  rendv  I'nr  von.  Mrs.  Tlioinpson 
srti  -.,  blows  piisspd  ii|ii>ii  tlieir  iiiei'ti'isj,  wliicii  -lie  belii'v  s 
weiT  given  by  Daves.  Dudley  sa}s.  In  did  mn  -ee  Daves 
stiikt'  b' fore  tlie  slal) — ilir  oiliei  witnc-scs  say  iioiliing 
of  iiJAvs  ti  iliis  tliin  .  I;iiincdi.it'  ly  npoii  llie  last  meet- 
in;;,  liie  deceased  received  the  inortai  wound  of  wsiich  lie 
died. 

Jones,  Soliri'itr-Geiipra! — The  ci-imi'  of  wliirh  tin- pris- 
oner is  indi'  led,  IS  tiiai  oruiiirdt'i-  Thi'ie  is  no  doiibi  but 
thai  a  hoiiiicidr  was  cotiiniUled  by  hini,  and  I  will  not 
dwell  upini  such  jiarts  of  tii>'  i-»i(hMice  as  j^o  to  the  proof 
of  thai — the  couiirM  1  f<u'  the  prisonrr  will  not  deny  it  — 
neither  v\ill  tliey  deny,  but  that  ihis  hoiniiide  is  cittiei' 
miirder.oi-  inanslaughtei .  i  shall  \'iidea\or  lo  prove  from 
authorities,  ih  it  a  iKiniicide  coininit'ed  utide'  such  circuin- 
staiices,  amounts  lo  uiurder.  The  di'finitioii  id  iiiiirdei' 
is  this — when  a  person  of  sound  mcuioi-)  and  dtscirmm,. 
f440")  unlawfully  kill<'th  any  rcason.ililr  creatun-  in  Iteiu};,  and 
under  (he  piililic  protection,  wilii  malice  Hl'orethonglit,  ei- 
ther cxpus.  or  iuMiliei).  The  grand  distinction  be- 
tween murder  and  ioaii>l  iiiglKee  h,  liiat  murder  is  ac- 
coinpanied  willi  ilie  circu  nsiance  of  malice  aforetlioiiglit 
aiiii  manslaughler  not.  It  ts  this  circumstance  tint  makes 
H  lioiiiicide  aiiioiini  to  the  crime  of  murder  :  whenever 
tlierefore  the  q  tcsiion  is.  wticfoer  :lie  hoiuiiide  amounts 
10  murder  or  iiol,  the  first  tiling  to  he  enqmied  f>i  is,  was 
it  dxne  with  nialue  aforetlmuglit.  And  as  ilils  circoin- 
staiiie  IS  so  very  aia'eri.<l.  it  is  ptujier,  the  jury  should 
lia\uaclear  conceplion  of  its  Icj^al  slg'tificaiioo.  The 
term,  malice  af  icciiioujihi,  is  used  In  a  legal  and  tcclini- 
cal  sense,  and  lias  u.>>  ilii-.  ineaning  whicii  m  commou  ac- 
ceji  atioii  Is  iianiHy  .lifixej  to  i: — 'ii  ilevid-nce.  gmilg'  or 
ill-will  to  a  p  iriu'dlai'p -ison  :  for  hoiiiiciile  iu.<y  afnoiiiit 
to  III  irdrr,  ih'iiigii  i|>.-  slaye  nay  never  tief  ifi'  have  sei'il 
ui'  heard  ol  the  jieisio  K.ill -d  —  is  if  a  oi.tii  resolve  lo  kill 
the  fiesi  .nau  lie  iie'ls,  a  .d  i^i'iii  out  ai.d  Kills  i  man  lie 
it.-i-er  ii'fore  s,,w'  ;  or  il  he.  discli  icge  a  gio  .in  >ogst  a 
m  dli'ii<tc  I'!  p  •    ill'  ,  none  of  vvli.dti  lie  kaoweili  ao_v   loiilg 

of;   or  if  lie  ijues  Willi  an  uiu'uly  hoi'ao  used  lu  kick, 


IIAYWOOU'S    REPORTS.  507 

amon.^st  a  multitiide  of  people.  And  tlip  horse  kicks  one  Oct.  ir96. 
with  whom  he  h.td  no  previous  acqiiiiiiitance,  so  that  he  ^■*''''^'''**^ 
die  ;  or  if  inteiidiiii^  to  kill  one  nirtii  against  whom  he  had 
malice  ill  tlie  rommon  sense  of  the  won!,  and  striking  or 
shooting  at  him,  he  kill  another  without  any  design  a- 
gainst  him,  and  with  whom  he  had  no  previous  quai'i-el, 
1101-  Hii}  ill-will  against  hitn — all  these  homicides  are  ma- 
licious, though  in  none  of  them  had  the  slayer  had  any 
particular  ill-will  against  the  person  killed.  Tiie  true 
legal  idea  of  malice,  as  applied  to  the  case  of  killing,  is, 
where  the  fact  of  killing  is  attended  with  such  circum- 
stances as  shew  the  slayer  to  have  a  cruel  and  diaholical 
temper  and  disposition,  above  wiiat  is  ordinarily  found 
amongst  mankind,  or  a  heart  regardless  of  social  duty, 
and  totally  bent  OH  mischief.  Foster  225,  2,57.  It  is  the 
crui-lty  of  the  action,  and  the  malignity  of  heart  the  ac- 
tion discovers,  to  which  the  law  attributes  the  Crime  of 
murder  ;  and  whicli  causes  the  killing  to  be  considered 
as  unfit  to  be  reduced  to  any  species  of  homicide  jnferior 
in  denomination  and  puiiisliment  to  that  of  murder.  This 
cruelty  and  malignily  of  lieart  is  discoveiahle  from  the  ac- 
tion itself,  and  the  cuiiscs  th.it  lead  to  it.  If  the  cause  that 
led  to  it  be  such  a  conduct  on  the  part  of  the  person  slain, 
as  would  in  ordinary  tein|)ers  have  produced  only  a  slight 
resentment,  not  rising  so  high  as  to  aim  at  liie  life  of  tlie 
offender,  but  only  to  a  punishment  pniportionahle  to  the  (aa-i\ 
offence,  and  yet  the  person  offended  lias  attacketL  and  ' 

beaten  the  other,  in  such  a  manner  or  with  such  a  wea- 
pon as  shews  an  intent  to  kill,  and  not  only  to  chastise; 
and  in  healing  he  has  killed  the  other,  the  law  will  deem 
it  murder  :  because  the  beating  in  a  cruel  op  unusual  man- 
ner, or  with  such  a  weapon,  are  circumstances  attending 
the  fact  which  shew  the  lieart  of  the  slayer  to  have  been 
more  than  ordinarily  cruel  and  regardless  of  another's 
woe.  Foster  259.  The  law  deems  it  proper  he  should 
answer  lor  all  the  consequences  of  his  cruelty,  to  their  ut> 
must  extent;  and  that  one  who  has  behaved  himS'  If  with 
so  much  obduracy  and  pi-rverseiiess,  should  no  longer  be 
regarded  as  entitled  to  that  coutpassion  which  the  frail- 
ties of  human  nature  may  justly  claim.  He  has  acted 
not  from  the  frailly  of  his  nature,  but  from  the  unfeeling 
ferocity  of  a  savage  heart ;  and  this  circumstance  causes 
the  law  to  impute  to  him  the  crime  of  murder — ;i  crime 
whi|||i  seems  worthy  to  be  treated  with  no  indulgence,  but 

64 


508  Haywood's  reports. 

Oct.  1796.  with  the  liighist  .species  (»f  severity.     So  if  A.  invite  B. 
v^^v^"--  to  liis  iioiise,  whi  re  A.  has  a  womjiii  whu  lives  with  him, 
and  15.   anil  she  disagree,  and  B.  ahnse  her,  and  A.  re- 
qiie'-i'i  B.  Ill  (lesisi  from  ill-treatiii,!;  the  woman,  for  that 
lie  is  l)oiin(i  to  prittei-t  her ;  and  B.  sliall  continue  hisabuse 
and  A.  re(|ucst  him  either  tu  desist  from  abusing  her  or 
to  leavf  thi-  huuse,  and  B.  gets  up  and  throws  a  bottle  of 
wine  itt  ihe  head  of  A.  and  immediately  draw  his  sword,    ! 
and  B.  with  hissword  kill  A,  it  is  murdei':  for  the  wmds    , 
s})i>k<  n  by  A.  wer-e  not  improper,  nor  such  as  ordinarilj    ! 
would  stii-  uj)  a  man,  to  whom  such  words  on  such  anoc- 
casDu  were  spoken,  to  seek  the  life  of  the  other  .    yet  B. 
having  .hrown  a  bottle  full  of  Aine  vvith  great  force  at  tiie 
head  of  A.  and  by  that  hri\  ing  discovered  an  intent  to  kill 
him,  and  immediately  having  f()llowed  his  intendi  d  lilow 
witli  drawing  ins  sword,  anoilifr  indication  of  his  seik- 
ini;  iiu'  life  of  A.  upon  so  slight  an  occasion,  arecircum- 
atanits  that  shew  a  disposition  in  tlie  slayer,   regardless 
of  social  duty  and  I'atMll^  bent  u|)on  mischief — a  heart  ex- 
cessively cruel  and  turned  to  iiiliuman  revenge,  and  there- 
fore it  is  munler.     Keelyng  liJO.     Whenevei'  this  excess 
of  cruelly   appears,  this  disposition  of  the  mind  to  enor- 
mous revenge,  seeking  n|)on  no  extraordinary  provoca- 
tion for  the  life  <tf  a  fellow  man — the  crime  of  nomicide 
amounts  to  murder.     Also  the  crime  of  murder  may  be 
inferred  from  the  circnm-tauce  of  former  grudges,  in  the 
pieseiit  case,  between  Norris  and  the  deceased  ;  but  I  am 
,.Acy\    willing  not  lo  insist  upon  this,  because  it  «  as  proved  they 
^     "'    were  reconciled,  and  drank  together  at  the  races  for  the 
j)urpose  ol  settling  tiieir  dispute.      Fhe  au'hority  of  I  //. 
p.  C.   191,  may  be  produced,  and  J  s.ppose  will  be  pro- 
duced, where  there  has  been  once  a  furmer  fighting  be- 
tween the  parties  and  a  reconciliation,  and  a  new  falling 
(mt  and  lighting  upon  w'hi<h  deaih  ensues,  tliatitsiiall  nut 
in  such  case  be  attributed  to  the  old  grudge.     1  will  ad- 
mit this  to  be  law,  as  it  is  not  my  desiicto  press  any  thing 
against  the  prisoner  but  w  hat  the  law  of  tlie  country  and 
the  e\idence  wairams.     Unhappily  there  is  no  occasion 
for  resorting  to  the  preceding  quarrel,  to  fix  U|i(in  lln-  pri- 
soner Hie  guilt  of  murder.     No  case  .if  killing  upon  a  pro- 
vocation given,   has  ever  been  adjudged  manslaughter, 
where  tlie  pro\ocaiion  was  no  greater  than  tiial  which 
Was  gi\eii  in  ilie  present  case,  and  the  killing  itself   was 
conunitted  with  so  much  wi<  kednes-.    Disj-.utes  and  jilt- 
ing in  consequence  of  them,   happen  everyr  day  in  the 


haywood'9  reports.'  509 

streets,anil  elsewhere,  \\  ill  'lie  law  sas ,  «  hen  one  is  worst-  Oct.  1796. 
ed,  he  m;>\  quit  ilie  affrav,  go  lunne,  ])riM  idf  liim-ilf  w  itti  -^"v'"^/ 
a  kiiirt",  fftiirii  and  plunge  il  into  the  hods  of  his  ad\er- 
isaiv,  iiiid  that  he  shall  be  guilty  nfnunioic  tli  iii  man- 
slaii.nhter  ?  Such  a  doctrine  will  deluge  the  couiitiy  in 
blood.  The  life  of  every  man  wlin  is  diawn  iiito  a  quar- 
rel and  ronfetids  with  another,  will  bi-  ■»  danger.  What 
can  be  more  '-ruel,  uiore  indicative  of  a  malignant  heart, 
than  this  deid  of  the  prisoner  ?  He  qii.iriels  -\ii(i  an- 
other and  is  beiten,  a  thing  that  ha|i|)eii-i  t\ety  da}-,  and 
'that  will  ha|)|»i'n  so  long  as  there  are  men  ;  for  this  he 
quits  the  conflict,  goes  directly  fo'-  a  deadly  '^eaprjo,  re- 
tui'iis  and  kills  his  antagonist.  Would  oMiee  men  in  ge- 
neral, in  his  situation,  have  taken  up  tlie  cruel  purpose  of 
seeking  so  deadly  a  revenge?  1  think  tirey  vvmild  not  ; 
and  it  seems  to  me  the  act  can  apjiear  no  otherwise  th.in 
as  the  effect  of  a  cruel  disposition,  nut  of  hninaii  weakness 
deserving  of  our  compassion  ;  and  if  it  he  Iheeffeci  rifcru- 
ielty,  it  amounts  to  murder.  Had  he  not  lime  In  going  80 
;or  an  100  yards  and  returning,  whilst  he  was  nieditaiing 
the  horrid  deed,  to  admit  <iue  sentiment  of  humanity — to 
reflect  and  he  diverted  from  it  ?  P'or  the  honor  of  human 
nature  let  it  be  said,  there  are  but  few  men  in  the  woild, 
who  in  all  this  time,  would  not  have  persuaded  theiti- 
selves  (o  abandim  tlie  itihiiman  desiii;n — but  very  fe«  who 
would  not  have  been  avNakened  and  alarmed  by  the  work- 
ings of  so  black  a  spirit  within  them,  and  have  sliriink 
from  its  suggestions.  The  heart  that  could  so  Inng  en- 
tertain the  hideous  fiend,  must  have  been  familiarized  to 
its  lessons — the  cruelty  of  the  act  demonstrates  it  murder,  ("443') 
and  here  is  (hat  cruelty  in  its  most  heightened  colors — 
The  cases  in  the  bonks  where  homicide  is  adjudged  liut 
manslaughter,  have  gone  upon  the  ciirumstance  of  some 
great  prnvocalioii  given  to  the  slayer — sucii  as  in  ils  na- 
tuie  is  calculated  to  excite  the  passions  to  the  highest  de- 
gree of  turbulence — not  upon  that  of  anger  or  resentment 
conceivetl  upon  orcasimis  of  frequent  and  ordinary  nccur- 
rcnce.  Reproachful  w  ords  spoken  to  the  slayer,  how  pro- 
voking soever,  \vilj  not  reduce  tlie  act  to  manslangiiter  ; 
because  words  do  not  generally  excite  to  that  degree  of 
fury  which  aims  at  the  life  of  the  speaker.  Keelyng  55. 
The  aiming  at  his  life  (lierefnre  upon  snch  a  provncation, 
is  a  proof  of  that  devilish  spirit,  regaidh-s  of  social  du- 
tj',  which  cares  not  for  the  evils  inQicted  upon  others—- 


510  HAYWOOD's  REP0UT6. 

Oct.  1796.  tJiat  perversene.ss  of  heart  wliirli  tin-  law  piinishefh.  If 
'•^"^'"**^  two  pi'i'iioiis  sii(l:leiil>  fall  out  and  liefli'.  and  iti  tlio  mutest 
nil*'  kills  llie  other,  that  ia  maiislHii;;htri-  :  th<-  blood  is 
healed,  the  |iassi(iiis  boil,  fafje  dictates  his  conduct,  aiid 
wliilst  the  bh'Ws  aie  jiassing,  tliei-e  is  no  lei-<ufe  lor  reflrc- 
tion,  nor  time  I'or  I'easoii  to  a.ssiuno  its  .  injiire.  KeeUjng 
56.  That  is  not  like  the  case  before  us:  here,  tlie  cun- 
bataiits  were  separated,  and  the  fatal  blow  not  given  till 
three  or  four  minutes  afterwards  ;  not  until  the  slayer 
had  gone  80  or  an  100  yai-ds  and  returned,  after  aiiniiig 
himself  with  h  dcaillj  wciipon.  Or  if  a  man  be  jirovoked 
by  It  giVat  indignity  offeied  to  him.  as  by  pulling  his  nose, 
spitting  ill  his  face,  or  the  lik<,  and  he  kills  immeiliaiely, 
till'  law  will  attribute  the  act  to  human  frailty  ;  but  in  all 
thesr  cases  tlie  provocation  is  of  the  liiglKst  kind,  and  the 
killing  sudden  aiitl  instantaneous,  before  tli>'  slayer  ha.s 
time  10  deliberate  or  even  think  upon  ilie  act  he  is  about 
tn  commit.  Keehjng  ]55,  \oQ>.  Lmch\55.  Any  circum- 
stance of  delibeiaiion  a(  (iimpanyiiig  the  fact  <if  killing, 
though  the  falling  out  is  sudden  and  the  killiii;;  a  short 
time  alter,  will  cause  the  sla>er  to  fall  under  the  iinpiila- 
tioii  of  murder  ;  as  where  two  persons  suddenly  f.ill<iut, 
and  the  one  goes  away,  saying  he  will  gel  something  and 
stick  tlr-  other  ;  and  half  an  hour  afterwards  returns,  lia-  ' 
ving  a  great  coat  on  and  a  wcapfin  concealed  under  it, 
ami  throws  down  a  foil,  the  play  iliey  were  at  before  the 
quarrel  began,  and  the  deceased  according  lo  custom, 
takes  up  the  foil  and  strikes  the  other,  who  draws  out 
Ills  weapon  and  kills — it  was  adjudged  murder:  not  be- 
cause the  space  of  li:ilf  an  hour  had  intervened,  but  be- 
cause the  conduct  cif  the  slayer  e\inccd  di-liheration  and 
a  cruel  puipnse.  Foster  132.  In  the  present  i  ase,  th're 
/'444")  s"'**  circumstances  which  shew  deliberation,  and  a  design 
concealed  in  the  breast  of  the  slayer.  He  was  asked, 
whether  he  hnd  a  weapon?  He  said,  no.  Again — or  a 
slick  .''  He  answered,  no.  Why  did  lie  coticeal  ihiscir- 
tumstance?  What  other  moti\e  could  he  have,  but  to  in- 
duce Daves  to  come  upon  him,  'hat  he  might  strike  the 
fatal  lihiw  ?  This  is  as  weighty  a  circumstance  towards 
proving  rt-flection  as  any  of  those,  or  all  of  them  together, 
mentioned  in  tlir  case  last  cited.  As  ti.  ihi'  blows  said  by 
Mrs.  Thompson,  to  have  passed,  immediately  before  the 
stall,  no  stress  is  •(•  ■  <  la'd  upon  them,  because  if  they  ac- 
tually did  pass,  J^Torris  had  come  to  that  spot  armed  with 


uavwood's  reports.  ^^^ 

R  deadly  wea|»on,  to  laki-  <i\va}  I  lie  lile  olilie  dcceaspd,  up-  °^|,.:^JL^ 
0)1  a  hl;i(k  a.Kl  diaboliciti  (lcsi(,'ii,  the  tiiif  >eiisi-  of  the 
teini  malKC  :  iiiid  havirij^  kiir.'d  iti  pursiuuici-  oltliat,  iiC 
is  s'iil*>  «' """d' r.  "IIIk'U.!;!"  he  ^as  sirickcti  b)  tliP<»4liei* 
before  tlic  mortal  vnoiiik!  was  ifixeii.  Ujioii  iht-  iiiO'^t  at- 
tei.fhe  cousidi'iatioii.  I  cannot  bui  \  iew  this  rasje  as  ii.ur- 
dii',  and  with  tbi'  obsei'vation-  I  lia\e  ii()\\  made,  I  sub- 
mit the  Caieof  tliis  (inliap|iy  iiiaii  to  tlie  decision  of  the 
court  and  .jnrv. 

Mr.  llatj,  and  ihfw  Mr.  Taylor,  answered  tbe  Soliei'or, 
an<l  coiniiicnled  upon  ilie  ev  iilenrc  ;it  great  Icnif'i.  ,'y.(l 
with  iiiiich  ii.p;enuity,  placing  «•  ''i  as  fa<oriible  a  lig'it  fir 
the  |)i  isdiier  as  |)ossiblo  :  bnt  as  tlie  true  siate  of  ficN  is 
as  above  collected,  r.  is  ii-ele^s  to  repoi-i  th*  ir  ternarks 
opoii  llnm.  Tlie\  insisted  timt  the  law  so  far  as  reiatid 
to  a  case  circmnstaoccd  like  the  piescrit,  <lelines  man- 
slaoghter  to  be — when  the  fact  is  dcnn-  in  tlie  lieat  of  pas- 
sion and  resentment,  excited  npoit  vioieict  provocation  sri- 
ven  :  and  the  killini;-  need  not  be  whiJs'  both  parties  aie 
cond)attini:;,  as  Mr.  Junes  seemed  lo  intimate  upun  tlie  au-  ■ 
tliority  of  A'eeiyng  5Q.  Biu  if  committed  in  so  short  a 
timr  after  the  irritation,  as  tl;:it  t!:e  passions  have  not  had 
tiine  tosiibsiih'  and  cool,  it  is  inanslaii!;!iter  only.  And 
tiny  cited  Rinvkij's  case,  Cio.  Jiic-  296,  where  twobojs 
foii.!;ht.  one  be^it  the  nthii'  and  dre-.v  blood  from  his  nose, 
who  ran  three  qtiarters<d'aniilr  rohisfalher.whocaine  with 
a  sliiffA;  strmk  the  other  boy  that  he  died,  this  was  adjudg- 
ed manslaughtei' only, owing  to  ilo' heat  of  the  passions  at 
the  lime  ihe  blow  was  given.  They  also  ci)ed  several 
cases  from  Com  Dig.  vol.  -i.  p.  !?5S,  to  show  that  the  kil- 
ling will*  a  deailly  weapon  (thongti  the  deceased  weri-  not 
ligl  ting  at  the  I'lme)  under  the  iiifliieiice  of  violent  anger, 
hah  been  adjiid-;e(l  maiisliught.''-.  'riiey  also  cited  1  fl. 
P.  C.  82,  and  Foster  -278.  Strmige  499.  JCeelyng  5G, 
tS5,  136.  ami  Leach  155. 

Judge  Haywoou. — The  case  before  us  is  of  awful  im-  (445) 
poi'tance  :  r\i'ry  ( ircuiii'-tance  in  it  is  W(!;'tliy  of  atten- 
tion and  consideiaiion  :  I  am  pleast'd  at  the  solemn  si- 
lence which  hrtih  prevailed  dining  the  progress  of  this 
trial,  'file  offeiK  e  of  whic-li  ihe  pi  isoiier  is  indicted,  is 
that  of  the  murder  of  J\''athaniei  Daves.  If  he  is  guilty 
upon  ilice>  idence.  xvi-igiK d  |)j  t|,c  law  of  the  country^  piib- 
li<  jasiic-  icpii  s  lie  shonld  not  he  screened  by  an_>  mis- 
placed Compassion  ;  and  if  ui)oii  the  evidence  he  is  not 


512  ilAYWOOD-'s    llEPORTS. 

Oci.  1796.  giiilfy  of  tlie  Clime  imputed  t"  him,  no  influence  wliatso- 
^''"^^'**^  evei-  '^lioulil  prevail  to  iiiri'li-e  liis  -.irqtii'Ul.  Whether  he 
bi-  gi'ilt*  or  iiiif,  (li'pei'ds  i.pon  the  law  ami  the  fact  :  be- 
fore we  proi  eeil  to  examine  the  fart,  we  sliould  clearly 
cotnpreheiid  what  is  iiieani  hy  the  term,  murder.  To 
fix  the  atieiitioii  only  to  such  circumstances  as  are  mate- 
rial to  he  con«i(lcre(l  now,  it  will  he  sulticient  to  say,  it 
is  a  killing  with  malice  prepense-  The  other  p^irts  of 
the  defi'a'ioti  have  lieen  fully  s^wfu  b>  the  Snlicit>>r-Ge- 
neral.  Malice  prepense  is  a  lee;al  term  that  needs  ex- 
planation. It  does  not  siffnify  ill-will  or  male\olence 
against  an  in«rni«lnal;  it  means,  hs  some  authors  express 
it,  a  disposition  to  do  evil  :  as  c)theis.  the  symptom  of  a 
wicked,  depraved  and  corrupted  heart  :  as  others,  the 
sign  of  a  heart  regardless  of  sociiil  duly,  and  f;(t;illy  bent 
upon  mischief:  by  others,  it  is  termed  a  circumstance 
attending  the  fact,  that  cuts  <((f  the  slayer  from  all  man- 
ner of  excuse.  All  of  thettt  being  only  diffi-rent  modes 
of  reprcsentitig  the  srtine  idea.  By  this  latter  explana- 
tion is  meant,  that  when  tlie  killing  is  without  anv  justi- 
fying, excusing  or  alleviating  circnmstatice.  it  is  tiieii 
murder.  Tiiere  are  a  great  variety  of  such  circumstances: 
for  instance,  where  the  killint;  is  committi-d  hy  an  officer 
in  executing  the  sentence  of  a  proper  ti  ibunal  ;  the  kill- 
ing by  such  authoi  ity  and  for  such  a  reas(m,  is  a  circnm- 
stancc  that  Justifies  the  party.  So  also  if  a  man  kill  ano- 
ther wlio  is  attempting  to  kill  or  rob  him,  or  the  like  : 
here  the  killing  being  with  a  design  to  prevent  the  per- 
petration of  as  gieat  an  cmI  aitiinpted  to  be  brought 
upon  an  innocent  person,  is  a  circumstance  th  it  justifies 
the  deed.  If  a  man  doing  a  lawful  act  in  a  i)roper  man- 
ner, undesignedly  kills  another  :  here  the  killing  being 
done  without  any  (h'sign  to  kill,  and  vvitlimit  atiy  nigli- 
gence  in  the  party  killing,  is  a  circumstance  which  ex- 
cuses him.  Soifiht  parly  slav  ing  hath  been  fighting  with 
another,  anil  declines  the  ( oinbat,  and  the  othrr  press 
him  so  hard  that  he  is  obliged  to  kill  him  to  prevent  his 
own  destruction,  or  great  hoilily  harm;  this  circumstance 
fAAc\  "f  killing  to  avoid  liis  own  destruction,  though  originally 
^  ■'  cnlpiiblt  in  figliling  with  ihe  decertsed  at  all.  will  excuse 
him  from  tiic  gnilt  of  f  hiny.  And  in  all  other  cases, 
where  ihe  circumstances  attending  tlie  fact,  are  such  as 
will  .jn-tily  or  rxruse  the  paity,  in-  is  not  guilty  of 
muidiT  :  because  the  circninsi.inci  s  are  not  sucli  as  leave 
him  without  excuse.     Also,  althuugh  the  killing  may  not 


HAYWOOU'S    REPOIITS.  5l3 

be  attended  with  ciiriimstances  oCjustififation  or  excuse,  Oc'i''5S- 
yet  it  inaj  br  attedded  witb  siicli  timimstariciS   as    v\  11 1 '-^'"^'"'*^ 
mitigate  nis  oflTince,  aiitl  air<tr<l  liiiii  siiini-tliiiii?  to  ^ay  by 
way  ol  exfiHing  oi-  exeiiiiJtitig  himscll"  from   llie  guiil  of 
nmriler:  as  \vliei'esiiiii>;  great  and  \  inlciit  provocation  lirttli 
bet'o  gi.eii  to  liiiii  by  the  piisiisi    kilh-d.    anil    hi^   io    the 
transport  and  I'ury  nfhis   iniision   killeth  t!ie  otiicr,  the 
law  111  such  case  altribiifcs  the  killing   to   the   frailty  of 
huiaaii  nature,  opcrati'd  upon  liy  excessive  anger,  'Xcited 
by  the  unworthy   tieaiinont  nf  the  ileceas^'d  ;  and  both 
law  and  reason  s.iys,  th  it  a  killing  undir   such   circum- 
stances, should  not  in-  punished  with   the   same   severity 
as  a  killing  withmit  provocation,  or\y:'lionta  very  great 
one,  and  when  llie   mind   is   cool   and    reflecting.      The 
great  distinction  between  minder  and   inanslaught«r  is 
this,  manslaughter  is  committed  under  the  ojiei  atioii  of 
furious    anger,    that   suspends    for  a    time    the     proper 
exercise    of    reason    and    refieclion,     and     wliicli    iiatli 
been  stirred  up  by  sinne  great  provocation  :   for  there  are 
some  |)ro\ocaiioMS  tuai  arc  not  indulged  with  an   allow- 
ance of  exciting  the  passions  to  such  excess,  and  thus  a 
distinction    is    formed    bitween  the  <lifterent  degrees  of 
provocation — if  it  be  by  words  or  gestures  only,  it  w  ill 
uot  be  sutlicient  to  mitigate  lioinicide  into  inanslangh'er  ; 
but  if  it  be  a  provocation  by  some  great  indignity  offred 
to  (he  party  killing,  as  by  spitting  in  his  face  or  the  like, 
or  by  falling  out  and  ligliting,  so   that  in  eitli  r  case  it 
may  reasonably  be  presumed  the  blood  is  heated,  and  the 
passions  raised  to  such  a  degree  as  lo  suspend  the  proper 
o]ieratioii  of  the  reasoning  povi-ers,  the  exercise  of  judg- 
ment and  reflection,   such   provocation   will    be   a    suffi- 
cient iMie   to  extenuate  the  offence   into  manslaughter. — 
But  although  a  sufficient  |)i-ovoc.-Uion  be  given,   and  the 
passions  greatly  excil.  d,  jet  if  a  sufficient  (iiiie    inter- 
venes for  the  passion^  to  subside  and  cool,  and  after  that 
tin  partj  provoked,  killeth  ihe  other,  the  law   will  de^  in 
it  murder  5  as  having  not  been  an  effect  of  uiigovern.ible 
passion,  and  from  the  frailty  of  hnmaii  nature,  but   upon 
a  principle  of  levenge  alter  reason  li..d  assumed  its  jiroper 
station.      What  is  a  snfficieiu  time  for  this  p  up.'se,  haih 
lU'Acr  as  I  know  of  been  precisi-ly  ascer'-iim-ii.     It  hath 
been  adjudged  tliai  an  hour  is  more  llia.i  sniliiient  time.    (447) 
It  seems  to  depend  greatly  upon  the  nature  ot  the  jn-oMi- 
cation,  and  must  be  left  to  the  jury  to  decide.     If  in  the 


511 


HAYWOOD  S  REPORTS. 

Cfi'^i'  lit-riir  tlioiii,  tlipy  tliiiik  siiHicietU  titnod'ul  infervcne, 
'iiii'v  siiouid  find  till'  piisfnicr  gnilty.  thong'i  In-  liid  Ueen 
griMitv  |)i'i)V(>k('(l  brfiiri' :  il' oilioi'wise  tlicy  should  find 
liiin  not  !!;uilfv  iif  nuird'c; ,  but  of  nianslaii.s^litcr  011I3. — 
Also,  altliciu;;li  ilie  sI::tii'I"  I'atli  bet-n  greatly  pniMiked, 
and  was  ngilated  by  icsriitmrnt  and  anger  in  the  liigbi'st 
(ligrce,  and  bath  not  liad  a  siifficii-at  linu'  fm- rr)i)ling  be- 
I'ori'  the  I'afal  stroke  givon.  jet  ifni  fact  he  appeal's  to  be 
jxisse^srd  of  drlibeiMtion  and  refie  lion,  wiu'ii  or  just  be- 
i'lire  the  time  lie  t;iv(s  the  innriai  blow,  it  'vill  be  nuirder. 
As  where  two  men  quarrel,  anil  a!<iee  to  fight,  and  the  one 
observes  to  the  oliiei-,  he  must  first  cliange  his  shoes,  as 
they  «ould  render  'lim  less  expert  with  tiic  sword  ;  and 
tiiey  afterwards  go  out  and  fight,  and  he  kills  the  other, 
it  is  mui<hr  ;  because  tlie  remark  he  made  shews  delibe- 
ration and  relieclion.  For  always  it  is  to  be  observed, 
that  the  law  allows  the  offenre  to  be  extenuated  only  upon 
the  ground,  that  the  slayer  tias  intt  the  fn  e  and  propel', 
exercise  of  his  rational  faculties,  ow  ing  to  the  fury  of  re- 
sentment not  unf'  asoniibly  conceived  There  are  other 
distinctions  hetween  nnirdei-  and  manslaughter  not  ne- 
cessni'y  to  be  now  taken  notice  of,  as  they  have  no  rela- 
tion to  aLiy  such  case  as  is  trained  by  the  evidence  now 
before  the  court.  It  is  most  proper  to  state  only  such' 
pai-ls  of  the  law,  concerning  Initnicidc,  as  being  com- 
pressed into  a  siicrinct  cotnpuss,  may  serve  to  exiiibit  a 
deal- view  of  itie  distinction  between  murder  and  man- 
xiaiigtitcr  ;is  far  as  regards  this  case.  The  next  thing 
to  he  lione,  is  to  a|»ply  suc'i  pti'ts  of  the  evidence  as  are 
material,  to  ilic  rnlei  Just  laid  down.  The  first  thing 
that  presents  itself  is,  JVorris's  going  in  Rumsutfs  house. 
He  does  not  appear  to  haxe  behaved  illy  tliere;  fi'om  the 
"whi.h'  of  liie  e\i<lence  it  does  u^^^  a|)pear  he  weiii  there 
wiih  a  design  lo  quarrel  :  he  had  retired  bclore  Jhives  & 
/>«(//{;// stri|)pe(l  and  went  out.  They  hallooed  for  him 
and  Young  in  th-  street,  calling  them  cowards.  Daves 
cliarged  JSTorris,  when  met,  with  a  design  to  raise  a  not : 
he  denied  it  again  and  agdin,  lill  called  a  damned  liar  ; 
vxhen  he  retorieil  the  lie  conditionally  ;  Z)avrs tripped  np 
his  heels,  kicked  at  liiin  on  tiie  ground,  struck  liiiii  .<fter 
he  had  risen  ;  and  u|ion  J\rorris's  intimating  an  int<'ntion 
to  resoit  to  tlie  la^^  foe  redMss,  repeated  Ins  blows  tliree 
or  iuiir  linns;  wli/n  JVocrts  ran  'IF.  Now  the  question 
arises,  was  this  a  great  provocation?  would  such  treatment 


UAYWOOU'S    REPORTS.  515 

excite  the  passions  of  man  in  jjcurral  to  a  degree  of  0='-  '^796. 
excess?  I  t'.iink  ii  rvc)iild.  [fJVorns  liad  killed  Daves  '^~'^^*^ 
on  ilie  s|ii>t,  I  tiiiiik  it  would  liave  |)eeii  l)iit  inanslaii£;liier.  (448) 
Morris  returned  in  tlicee  or  fnui'  ininutes,  and  gave  the 
fatal  stab.  If  lie  came  uji  and  not!  in.a;  more  pissed  be- 
fore tlie  stal).  as  the  witnesse-.  CaiiipbeU  and  DtuUeif  '-ay 
there  did  not,  llien  it  is  for  fliejury  to  considei ,  wheMier 
the  three  nr  t'oiir  iiiiniitcs  iritervening  betrtrcn  tU''  tdows 
near  .Mrs.  Rainsay^s,  and  the  stal»  opposite  Thompson's, 
was  suth'cient  time  for  the  passions  to  cool.  If  it  was, 
the  killing  was  iiunder.  If  ii  was  not,  the  case  falls 
under  the  same  cmisideration  as  it  the  fatal  stroke  h^d 
been  given  when  Daves  first  struck  liini.  If  the  jury  be- 
lieve  what  was  sworn  hy  Mrs.  Thompson,  and  wliicli  the 
other  witnesses  d'l  riot  meoiinii,  tiiiit  Daves  >>hen  he  ad- 
vanced towards  Mrris  after  his  rettiri:,  stim  k  him  two 
or  three  blows  before  the  stab,  they  have  a  right  to  con- 
sider whether  that  Was  not  a  fresh  [)rovoration,  sufficient 
to  ext'iiuate  tlic  hotnicidc  into  manslaughter.  If,  Itowi  ver, 
the  jury  believe  there  was  tint  a  sufficient  tiini-  fm  the 
passions  to  subside,  and  that  the  liluws  mentioned  Uy  MrSt 
Thompson,  did  not  pass,  yet  the  circumstances  related  by 
two  witnesses  of  JS''orrts's,  having  twice  denied  iiis  having 
a  weajioii  or  club,  as  it  tends  to  .viiice  deliberation  and 
reflection,  must  be  taken  into  their  consideration  ;  and 
if  they  believe  from  this  circumstance  that  he  at  that 
time  had  a  rellecting  capai  iiy,  and  meant  to  conceul  the 
weapon  from  Daves  in  order  to  dnw  him  on,  that  he 
might  kill  iiiin,  then  he  is  guilty  of  murder.  It  is  proper, 
how'ver  to  observe,  thai  such  a  conchision  is  in  some  sort 
negatived  by  Mrs.  Thompson,  who  declines  J^orris  told 
him  to  stand  off.  oi  the  wmst  would  be  his.  The  jury 
will  now  take  the  law,  the  facts,  and  thecircumsjancrsof 
tiiis  case,  and  hy  a  careful  cnmparisoii  ol  the  one  witli 
tiie  other,  they  will  draw  a  conclusion  and  say  whether 
the  prisoner  is  guiliy  of  murderer  manslaughter.  1  trust 
I  have  stafi'd  the  lnw  correctly. 

Judge  WiLiiAMS. —  I  agree  with  Judge  Haywood  ex- 
'  ccpt  in  a  few  ji.iriiculars :  he  says,  malice  is  understood 
of  a  killing  under  suth  circumstances  as  cuts  the  purty 
off  from  all  manner  of  excuse.  I  do  not  think  this  a  true 
position,  he  may  have  some  kio<l  of  excuse,  as  a  slight 
prowication  or  the  like,  or  a  provocation  not  sufKriei.tiy 
violent,  he  may  in  short  have  sonic  sort  of  excuse,  and 
65 


516  Haywood's  reports, 

Oct.  1796  ypt  |,c  cjiiilty  of  imii'der.  I  Ciuuiot  think  it  an  excuse  to 
•"^""'"^''^  iT(lucc  'lie  iifTi'iKT  to  inaii»ilan_e;l»tcr,  where  two  persons 
qiimr .  1  and  figlit,  ;iiul  one  goes  some  (listancp,  gets  a 
(449)  kiirli,  ictiirris  and  kills  the  other  with  it — surh  disputes 
hii|ip»ii  evt  ij  day.  11  wc  say  it  is  not  murder  to  kill 
shortly  aftei',  under  such  rircumstances  as  this  man  was 
killrd,  much  hlood  will  he  spilt  in  a  very  slint  tinn- — it 
will  he  estahiishiiig  a  drcadf'til  precedent.  JVorris  ran 
off  tVimi  ilie  first  conihat  and  wefit  home,  he  got  into  liis 
house,  hisia^tlc  of  refuge  and  defence,  where  no  one 
woulil  have  uffi  redtn  molest  liim — why  did  he  not  remain 
there  ?  VVhj  take  his  knife  and  i-eturn  back  eighty  or 
an  huiidied  yards  to  an  enraged  man  ?  Did  not  this  shew 
a  niurtlerous  intent,  and  that  his  heart  was  bent  upon 
cruelty  ?  I  think  it  is  no  matter  what  pro\ocation  the 
sla}''  may  have  received  ('mm  the  other,  if  notwithstand- 
ing ihni  he  appears  to  have  possessed  the  faculty  of  re- 
lie(  ting.  It  is  ii  ii  nipoiary  frenzy  occasioned  by  pas- 
sion, mid  depeiMtigtIicman  for  the  time  of  his  reasO!i,  that 
the  law  coiisid.  rs  and  goes  npnii  in  estimating  and  re- 
ducing the  iiiMViicide  to  manslaughter  ;  but  there  is  not 
any  evidence  in  this  case  of  a  deprivation  of  reason,  but 
evidi-nce  of  the  contrary.  He  denied  having  any  wea- 
pn»i,  w  lien  ex|iressly  asked  wiie'her  he  had  or  not  ?  The 
jury  will  consider  why  and  for  what  pur|)ose  he  made 
such  an  aiiswci'.  If  he  had  any  certain  end  in  view,  it 
is  an  eiideiice  tliat  his  reason  and  Judgment  were  not 
overturned.  On  occasions  like  the  present,  we  are  not 
to  give  ii|i  oursehes  to  the  guidance  of  commiseration, 
AVi  ought  inflexilily  todoju>rice  without  regard  to  con- 
sequences. I  am  sure  I  have  as  much  feeling  atid  com- 
passion for  my  fell<iw-cre;itures  in  distress,  as  any  man; 
but  it  is  great  criu'lty  to  the  (lublicin  a  Judge  or  juror,  to 
ac(]uit  a  murderer  from  motives  of  compassion.  It  en- 
coui  ages  such  offences,  besides  how  is  the  prisoner  dearer 
to  us  tlian  the  person  slain,  wlio  may  have  left  a  wife  and 
heljiless  orplians  to  de|)loie  Ins  loss,  deprived  of  their 
only  friend,  and  now  exposed  comfortless  to  the  world. 
I  do  not  know  what  was  the  situation  of  the  deceased, 
but  this  njHj  be  the  case  with  persons  who  fall  by  mur- 
den  us  liaiids,  and  their  dependants-  I  meant  not  to  pre- 
judice ihe  case  of  the  prisoner,  but  only  to  express  my 
ideii  (if  ijie  impropriety  there  is  in  shewing  favor.  If  the 
pi  isoner  by  iiis  conduct  has  subjected  himself  to  the  pun- 
ishment of  the  law  s  of  his  country,  we  were  not  the  cause 


Haywood's  reports.  517 

of  his  ♦rans.a:ressioti.     IfHuj  mishaii  befal  him,  it  is  his  Oct.  1796. 
own  fault,  not  ours — wp  '•hoiiid  never  Httoni|it  to  trample  --^■^''^*»^ 
U|ioii  tlie  rules  of  law  from  motives  of  nieicy  or  C(imii«s- 
sioii. 

The  jury  retired,  and  aftci    some  time  returned,   and 
foiiDil  the  prisoner  nut  t'oilty  nf   luurder,    hw   suilu    of 
Itiimsiiioghtei-;  and  he  was  burnt  in  the  hand  and  dis-     ^450) 
char^t'd. 

NoTK.— The  cause  of  reporting  tliis  case  witli  so  iruch  mimneness, 
is,  that  the  pubiic  opinion  iMn  very  lii^li  against  t'lC  prisoner,  before 
and  after  h'S  nial,  ^mdhe  was  prnniniMCi  d  Rinl'v  of  murder  b>  m  ny 
who  were  present  !it  his  trial.  Tin-  jiir)  who  acqiiiiti-d  him,  were 
higlily  censured  Perhnpsthe  learned  may  be  of  opiii on,  wiieiithey 
meet  with  this  case,  thiit  tlie  jury  }<ave  a  proper  ver  lict.  It  .s  possi- 
ble that  may  become  the  general  opinion.  If  so,  prohably  simie  of 
those  who  are  to  be  her-  after  concerned  in  lri:ds  of  bis  -on.  may  be 
led  to  reflect  on  the  rapidity  with  which  a  wronjj  opinion  sunn  linnes 
spreads  its  influence  over  ihe  public  mind,  and  to  be  ciiiilioii  d,  that 
a  poiiular  sentiment,  however  honest  ar.d  well  meaning  ii  m;iy  be,  may 
sometimes  become  current  for  want  of  snfticient  consideijtiiii  or  infor- 
mation, &  as  fn  quenlly  sn, respecting  maKers  of  judicial  deliberation  as 
any  others.  That  it  may  be  destructive  of  individu.d  safety,  andsliruUl 
be  watched  and  guarded  ajjainst  with  the  same  firmness  an  circum- 
spection as  the  influence  of  a  King  or  his  Ministers  in  a  Monncliy, 
when  attempting  to  interfere  on  such  occasions.  Should  ihi  reMding 
of  thisCiise  sufficiently  impress  ihe  minds  of  ;.ny  whonny  hereafter  be 
called  upon  to  decide  on  such  occasions,  with  ihe  propntty  and  use- 
fulness of  such  a  caution,  something  will  be  added  lo  ilie  st"ck  if  in- 
dividual security,  and  of  course  to  the  puolic  happiness  and  the  la- 
bor bestowed  upon  this  case  be  amply  compensated.  At  any  rate, 
ti.e  attributing  improper  motives  to  any  who  are  from  duty  concern- 
ed in  such  trials,  is  of  pernicious  example.  It  has  a  tendency  to  ilis- 
tract  the  judfjnient  by  the  terror  of  public  censure,  and  lo  render  it 
less  efficacious  in  perceiving  facts  and  circumstances  in  thcirtrue  light 
—the  opinions  of  men  may  differ,  and  yet  all  be  actuated  by  the  purest 
imentn.ns. 

NoTB. — In  Cock's  trial  for  treason,  Salk.  153,  the  court  decided,  a 
juror  could  not  be  asked  on  oat!),  «  hetlier  he  had  expressed  an  opin- 
ion unfavorible  to  the  prisoner  ;  because  it  was  a  misdemeanor  to 
give  such  an  opinion  in  a  criminal  case — but  guxve,  if  ihat  be  a  good 
reasoii — Vide  State  frials,  vol.  4,  p.  1<V4,  lb5. 

Note.—  Ihe  acts  of  18u6,  Hev.  c.  693,  s.  V2—\808,liev.  c.745— ISl.T 
liev-  c.  853,  provide  for  the  removal  of  causes  to  .nutlii;!-  ci  uniy.where  it 
isappretiendedlh»tafair  trial  cannot  be  had  in  the  first  county.  It  is  now 
the  universal  practice  in  this  State,  in  capital  cases,  to  ask  each  juror 
whether  he  hcs  formed  and  esptesseil  an  opinion  relative  to  the  guilt 
or  innocence  of  the  prisoner,  and  if  he  has  to  set  him  aside.  The  de- 
cision rel  .tiv>  to  tin  State's  discrediting  Us  "iwii  witness  is  not  law. 
Se.  Sawre>,\  Murrcll  ii  others,  2  Hay.  Z9T.  But  the  paity  calling  a 
witness,  may  dispro'L  oy  (jilier  witnesses,  the  f.ct  which  ihc  first 
witness  swore  to.  Bull.  N.  P.  297.  .ilexandcr  v.  Gibson,  2  Camp. 
.V.  r.  Rep.  555. 


518  Haywood's  reports. 

Oct.  1796.  State  v.  Oldham. 

The  act  of  1779,  Hev.  ch,  157,  sec.  2,  respcctinj^  the  appointment  of 
Jurors,  is  only  direciory,  and  does  not  appl)  to  Grand-Jurors. 

Hi-  was  Convicted  at  this  tn'Oi,  of  the  murder  uf  one 
Archibald  Juckson,  and  it  tieiiia;  demandid  (if him  what  ho 
liail  lo  s;ij',  wl  v  wenli  nee  of  diatli  should  not  be  passed, 
his  counsel.  J\Ir.  Duffy  and  Jtlr  Taylor,  ofTered  leasons  in 
arrest  of  judi^iiM'Mi,  all  of  wliirh  wei-e  abatidoned  in  the 
course  of  the  observations  made  upon  them,  except  the 
following,  MZ  :  That  sevrral  of  those  who  were  of  the 
grand  Jury  that  found  tli>>  bill,  namiiii;  them  particularly, 
amongst  whom  wat  JUr.  Hodges,  the  foreman,  were  per- 
sons who  then  severally  bad  a  suit  oi-  suits  depending  and 
at  issue  in  this  court,  and  were  lh<  reloie  disqualified  to 
ser\e  as  jurors;  und  for  the  maintenance  of  thi-  objection, 
thiy  relied  upon  1779,  ch  6,  sec.  2,  in  wbicli  is  this  pro- 
viso, viz:  Piovideil  ahvavs,  that  no  County  Court  shall 
knowingly  nominate  any  person  to  serve  as  a  juror  at 
two  courts  successively,  or  any  person  who  shall  have  an 
action  or  suit  at  issue  in  the  Superior  Court,  at  the  term 
to  which  be  shall  he  so  noniinatt  d  ;  and  they  said,  that 
(451")  u"d«r  this  clause,  Jiidge  Macvy  anil  .Jndgi-  Hatwooo, 
on  the  Western  circuit  of  tlie  spring  1795,  hail  rejected 
all  su(  h  jurors  as  disqualified. 

Per  curiam — This  act  is  only  directory.  The  intent 
of  it  was  to  exclude  suitors  from  the  petit  jury,  from  an 
apprebensioii  lest,  in  the  cour-e  of  tlie  term,  such  persotis 
might  combine  mutually  to  serve  each  othrr.  This  is  not 
to  be  apprehended  in  tlie  case  of  a  grand -juror,  who  has, 
it  not  in  his  power  to  Tender  a  quid  pro  qtw  in  the  same 
way,  should  he  be  i-ver  so  much  inclined.  This  act  is  as 
well  directory  to  the  Snp'tior  as  lo  the  County  Courts. 
If  the  Ctiunty  Court  ought  not  knowingly,  to  nominate 
suitors  for  jurors,  neither  ought  this  court  knowingly,  to 
receive  them  as  petit  jurors  when  sent.  The  intent  of  the 
act  is,  that  they  shall  be  excluded,  and  so  far  as  the  « iew 
of  this  act  extend-,  the  Superior  Court  will  not  suffer  its 
obje(  t  to  be  eliirled.    Upon  tins  ground,  the  court  |)roceed- 

ed  in  ihe  spring  ciicuit  of  1795.     £<  per  Williams 

that  practice  was  well  begun,  and  1  do  not  know  why  we 
have  not  continued  it.     The  reasons  were  overruled. 


\ 


Haywood's  reports.  519 

Aiimijmous.  Oct.  1796. 

In  this  case.theqiicstinii  was.  Iiow  the  two  fermsshould 
be  coinpiitfil,  wifliiii  vvliidi,  a  rorcplairiadt  or  tin  injiuic- 
tioii  liill,  must  piocped  afuM-  ilic  (li^sohition  ofliis  injiitic- 
tioK,  \N  licther  the  present  term  not  heiup;  je!  ended,  sh-idd 
be  reckoned  as  one.  this  bcin^  the  second,  exclusive  oi  that 
wheii-iu  the  dissohilion  took  place. 

Per  curiam — The  present  lei  ni  is  to  be  accounted  Ihe 
second,  and  if  he  has  not  proceeded  before  we  come  >cs^u- 
]arl>  10  his  cause  on  the  Equity  days,  iiis  canse  shall  be 
dismissed  ;  Mud  the  suit  in  hi  present  case  Was  disuiis- 
sed.  But  on  the  last  day  of  Die  term  the  Defetidaiit's 
counsel  beinj;  absent,  Mr.  Hay  shewed  that  tlie  complain- 
ant aciually  had  proccedid  within  time,  and  the  dismis- 
sion was  oideitd  to  be  stricken  out. 

Note. —  Vide  Jlnonymous,  mite  162,  anil  the  ciises  tliere  referred  to. 

HALIFAX,  OCTOBER  TERM,  1796, 

Parker  and  Wife  v.  Phillips. 

Wliers  a  father,  upon  the  m.irriage  of  his  diiugliter,  sinds  neproes  or 
or  other  property  with  htr  in  marriage,  it  \s,  prima  facie,  a  }>ift. 

Trover  for  a  ne_a;ro,  which  the  father  of  the  PlamtifT's 
wife  (and  also  »(  Phillips,  who  claims  iindi'i- a  sul)sc.(|iii'nt 
gift,)  sent  with  her  on  her  maniaj^e,  to  her  husband's 
house.  About  a  year  afteiwai'ds,  in  occasional  conver- 
sation, be  mentioned  to  iiis  daughter,  tiiat  he  had  not  in- 
tended evei'  to  take  the  negro  away  Irom  her,  when  he 
sen!  her  to  her  husband's  house.  There  v\as  otiier  evi- 
dence, but  upon  this.  Stone.  Justice,  i  tiled  accorilinir  to 
the  former  decisions  in  the  casesof /'errj/ cj"  Farrell,  Car- 
ter ^  Rutland,  anil  fFliitmell  v,  Mmre,  ilecided  :it  Eilen- 
ton,  prior  to  the  two  oiliers — where  a  father,  upon  ihe 
marriage  of  his  daughter,  sends  negroes  or  otiier  proper- 
ty wiili  her  upon  her  marriage,  to  her  liiisbaml's  Innise, 
that  it  is  a  gift,  unless  the  contrary  lie  proven  :  which  in 
the  present  case  not  having  been  done,  there  wasaverdict 
and  judgmeni  for  the  PlaintiflT. 

NoTK. — Firic  Farrell  \,  Pa-rii,  and  ilic  note  tliereto,  anteH. 


(452) 


Haywood's  eeports. 

Smith  T.  Powell. 

Though  a  judgment  is  not  nepotiablf,  yet  the  law  will  lo  far  take 
notice  of  an  a>signinent,  as  to  protect  it  a(;ainst  the  act  of  the  as- 
signor. 

This  was  a  sd-  fa.  ti)  revive  a  jiidtrment.  and  payment 
pleailfd  :  and  on  trial  nf  the  ismie  it  H|)|)e;irid,  that  mi  the 
daj  «licn  the  jitdgntiiit  v>as  obtained,  it  wjin  Hssigncd  by 
Smith  'd  Barkesdale — tliat  a(>er«ai-<ls.  <  xecntioii  issued 
and  w:(^  j»ii!  into  the  h'nds  of 'lie  Slieiiff,  wli"  returned, 
satisfi  d  HH  to  rests.  Smith  an''  Powell  hoth  inrormed 
him,  that  certain  judf^nients  «hi'h  Powell  hiul  ohtained 
agaii  St  Smith,  were  a.£;i-eed  to  he  set  oH  against  thisjudg- 
ment  of  Smith's  against  Powell,  and  h_v  that  means,  tlic 
whole  of  tlie  ju'lgment  was  Siiti'^fiid.  \boiit  six  months 
ago,  Smith  gave  a  receijjt  to  Powell  for  thi'  money  due 
upon  the  judgment.  Tiie  counsel  argued  as  ihis  was  done 
without  the  knowledge  or  consent  nf  Barkesdale,  it  was 
fraudulent  and  void.  On  (he  other  liand,  it  was  aigucd 
that  a  judgment  was  not  assiirnable  so  as  to  vest  tiie  le- 
gal interest  in  the  assignee,  and  that  the  Plaintiff  in  the 
judgment,  notwithstandini;  the  assignment,  mrght  nceive 
the  money  due  upon  it,  and  might  give  a  good  dischaige 
to  the  debtor. 

Per  cnrinm — Though  a  judgment  strictly  speaking,  is 
not  negotialile,  it  may  he  de  facto  assigned,  and  such  as- 
signment will  give  an  interest  to  the  assignee  which  the 
law  will  take  notice  of,  and  protect  against  the  arts  of  the 
assignor.  This  was  decided  some  years  ago,  in  the  rase 
oiMcDanicl  d|'  Tate,  at  M"rganton.  There  was  a  ver- 
dict and  judgment  for  Smith,  whose  name  was  used  by 
Barkesdale,  the  assignee. 

Note. — Tiie  cuse  o(McDanie/&  TViic  waslhus  :  Jl^ei>ani«/ had  sold 
a  nei;ri  lo  Tate,  and  h. d  tak'  n  a  bi^nd  tbi  i  liacco,  whicli  lie  . assigned 
to  Wier,  who  sued  Tate  in  the  nann.  ni McJJanUl,  in  the  County  Court 
of  Iliirke.  Tate  attempted  to  detind  liiirib.  if  by  proving  the  negro|to 
have  been  unsound  There  was  a  verilici  in  the  Touuiy  Court,  and 
the  caus'  came  up  by  appeal  to  the  Superior  C<iurt,  and  dejiendedin 
that  I'ouri  for  trial.  Tate  had  fnll  knowledge  of  the  assignment  to 
TVier,  am.  had  convtrsed  willi  him  im  the  suliject  at  dift'tient  timeF, 
as  tlif  piopvieior  of  the  bond.  Tare  liiiwever,  prevailed  upon  .17c/)«- 
\Aooj  fiiel  1,,  give  him  a  n  'ease,  und  gave  liiui  a  consideruble  reward  lor  it, 
and  b)  his  attorn,  y,  Mr.  Avery,  pleaded  it  since  the  last  rontinuance. 
At  tin-  tii.l,  it  was  insi-tid  by  le  Plainiift's  coimscl,  ai>(i  so  ruled  by 
the  C'  un,  ihal  all  the  former  pleas  were  waived  by  this  plea  since  the 
last  continuance-     The  PlaintiiF's  counsel  then  insisted  that  this  was 


Haywood's  reports.  521 

a  fraudulent  trinsaciinn  betwe"  .  McDaniel,  the  nominal  Plaintiff,  and  Mar.  1797. 
the  Dft'eidant,  to  defraud  Wier,  who  h^id  such  an  imerest  as  'lie  law  .^"v^^^ 
at  tliis  diy,  wili  tk*  notoe  of,  rhaupfli  it  wis  otiiervvise  hiUl  former- 
ly, aiidcitfd  1  Term  Hep.  619,  PFiuch  v.  ffijcAj.  And  upon  t\v,^,  the 
court  cliargrd  the  jury  to  tirid  f  ir  tlie  Pl:iintirt';  which  they  did.  A 
new  'T'Al  WHS  inuv  d  for,  and  a  ruli-  to  show  causi;,  iib<;iiued  and  en- 
larged to  the  next  t  rm,  when  the  matter  of  law  was  argued  before 
Judge  \snE  Hod  .ludgt  Macat,  wiio  dec  ddl  tlie  directions  .veie  r.'rht, 
but  Avery  allcgin.i,  he  had  been  taken  by  surprise,  they  offt  red  him  a 
new  Inal  for  thai  cause,  if  he  would  pay  the  costs  up  to  ih„i  time, 
which  being  ..onsiderable,  and  he  havini;  fiiid  a  oill  m  Equity  for  re- 
lief, he  refused  to  accept  of  the  new  trial  upon  those  terms,  .nd  there 
was  ju   ffmeiit  for  the  I'laiutiff. 

Note.— reWe  Ho^^'s  Exr'.s.  v.  Jshe,  post  471.  S.  C.  Conf.  Rep,  1 

Wofford  V.  Greenlee,   Conf.  Hep.  79. 


SALISBURY,  MARCH  TERM,  1797. 

Yai' borough  v.  Giles. 

Where,  in  appeal  from  the  County  C"urt,  and  a  new  trial  had  in  the 
Superior  Court,  a  verdict  for  is  great  a  sum  wis  obtained  in  the 
Superior  Court  as  had  been  rendered  in  the  County  Court,  Hat.vood 
Judge,  thoupfhi  judgment  mi, "-hi  be  entered upj/;sta/ito-  against  the 
appellant  and  his  st-curities,  under  the  act  of  178),  Hcv.  c.  233,  s. 
2.  But  Stone,  Judge,  was  of  opinion  the  act  did  not  ai)ply  in 
such  case. 

This  was  an  ajjiieal  from  the  County  Court,  ami  upon 
a  trial  here  this  tenn,  llieie  was  a  verdiit  for  the  Plain- 
tiff for  as  great  a  sum  as  there  was  in  tlie  County  Court; 
and  the  Plaiutitf  now  moved  by  liis  counsel  to  enter  up 
judgment  against  the  sureties  in  the  appeal  bond,  accord- 
ing to  the  act  of  1785,  c.  2,  s.  2. 

Judge  Hatwooo.  — It  may  be  done,  the  act  is  express. 
Judge  Stone — The  sureties  are  not  in  court :  if  a  judg- 
ment is  now  entered  against  thein,  it  will  be  to  condemn 
tiieni  unheard  :  the  law  whicli  says  this,  is  a  haish  one, 
and  should  be  constmed  with  all  possible  strictness  ac- 
cording to  the  letter:  the  act  says,  when  any  appeiil  prayed 
shall  not  be  prosecuted,  or  the  court  before  wiioin  the 
appeal  may  be  detirmined,  sh-.ill  affirm  the  judgnn  nt, 
th'-ii  shall  the  apjielhuit  bed'Cieedto  pay  to  the  iippellee, 
twelve  and  a  htilf  per  cent,  interest,  from  tlie  passing  of 
the  judgment  in  tlie  Ciunty  Com  t,  by  which  such  :ip|i6al 
may  have  been  granted  ;  and  the  bonds  taken  for  prose- 
cution of  appeals  witii  effect,  should  hereafter  make  part 


522  Haywood's  revohts. 

Mar.1797.  of  tlie  records  sent  ii|)  to  the  Superior  Court,  on  which 
^■^"^'^^^  jiiili^iiieiit  in-iy  bi*  instanter  entered  u|i  against  the  apfiel- 
laiit  and  his  securities.  Tiie  sentences  re^ipectrnj;;  the 
tx^elve  and  a  half  per  cent,  and  that  of  entering  up  Judg- 
ment against  the  .sureties,  were  (onjiiiiied  by  the  particle 
and — _|udgnient  may  be  entered  ins/a7Jier  at^ainst  the  sure- 
ties, where  the  a|i|)eHl  is  not  prusecuted,  or  where  the 
judgment  is  affirmed.  A  judgment  is  not  affirmed  wiiere 
theie  is  a  new  irial  in  tlie  court  abitve,  for  then  that  court 
gives  a  new  judgment.  The  judgment  of  tlie  County 
Court  is  only  affirmed  when  (he  appeal  is  nut  prisecuted 
(454)  and  the  appellee  for  tliat  cause  moves  for  an  aflBemation 
of  tlie  judgment  beliiw.  That  is  not  the  predcnt  case, 
the  appeal  has  been  pmsec  nfed. 

Judge  Haywooo — I  think  there  are  two  cases  speci- 
fied in  ihe  act,  that  entitle  the  Plaintiff  to  enter  upjiidg- 
meni  ;  fiist.  if  ilie  uppeal  shall  mil  be  prosecuted  ;  se- 
condly, if  the  judgment  shall  be  affirmed — and  that  the 
affirmation  of  judgment  here-spoken  of,  intends  a  judg- 
ment ill  the  Superior  Couit,  obtained  for  the  same  or  a 
greater  sum  than  the  judgment  in  the  County  Court. — 
The  affii'inalion  h<'respokeu  of,  is  not  meantof  an  affirma- 
tion upon  motion  for  want  of  piosecuting  ihe  appeal  ;  for 
tiien  the  latter  jiart  of  tlie  sentence  means  the  same  as  the 
former  part :  when  it  is  evident  from  their  disjunction  by 
the  Assembly,  that  they  were  meant  to  express  different 
circumstances. 

Judge  Stone. — I  am  of  opinion  the  act  does  not  neces- 
sarily embrace  the  case  now  before  the  court.  I  am  wil- 
ling, however,  a  notice  may  be  issued  to  shew  cause. 
So  ihe  Plaintiff  did  not  obtain  jiidgnient  instanter. 

Note. — Hay  wood's  opinion  seems  tiie  correct  one,  as  it  is  constantly 
acted  upon. 

Surviving  Partners  of  Anley  McNaughton  and  Co.  v. 
Hunier. 

Under  the  acts  of  1777,  liev.  ch.  115,  aec.  10,  tnd  1793,  Rev.  ch.  392, 
it  is  held,  that  .i  |)lc»  i>i  abaum^nt  is  not  tlie  pri)|jcr  mode  (<•  take 
adv.uitHjje  of  tlie  t'Lilnntf  's  Having  brought  his  suit  in  the  Superior 
Court,  for  less  value  tiian  fif.y  jiounds. 

Plea  in  abatement,  that  the  Plaintiff's  demand  is  not  of 
the  value  >f  fity  pounds. 

Williams,  for  tik  PiaintifT.  The  act  of  1 777,  c.  2  s.  10, 
directs,  that  no  suit  shall  be  cutnmenced  in  the  Superior 


iiaywood's  eeports.  523 

Court,  of*  less  value  tlia-i  fifty  pminds,  where  tlie  parties  Mar.  l-QT". 
live  iri  (liflFeri'rit  disirlrts  ;  and  if  any  person  sIihII  dc- ^■^'"^'"^^ 
niaiid  a  greater  sum  than  is  due,  on  purpose  to  evade  ihis 
act  ;  or  if  any  suit  shall  be  coininenretl  cnntraiy  to  the 
true  ineaiiin.!^  of  ihis  act,  the  PlHintifTin  either  case  shall 
be  nonsditfd  and  pay  costs.  Pmvided  tliat  if  the  Plain- 
tiff, or  any  person  for  him,  will  make  an  affidavit  that  (he 
sum  fir  which  his  suit  shall  be  Itrought,  is  really  due,  but 
that  fur  want  of  pi  oof,  or  that  the  time  limited  for  tlie  re- 
covery of  toy  article  hai's  a  recovery,  then,  and  in  that 
case,  the  Fiaintiif  shall  have  a  verdict  and  judgment  for 
what  appears  to  he  legally  proved,  &c.  The  same  clause 
is  repeated  and  re-enacted  in  a  subsequent  act  passed  late- 
ly. The  pleader  of  the  plea  has  siippo-;ed,  the  court  has 
no  jurisdiction  where  the  sum  really  due  is  of  less  value 
than  fifty  p(ninds,  and  has  accordingly  pleaded  in  abate- 
ment ;  but  this  is  a  mistake,  as  becomes  evideiii  if  we  on- 
ly consider  tlie  consef|iiences  of  a  plea  in  abatement,  and 
how  different  thi'  course  of  proceedings  must  be  upon  that 
from  what  the  law  intended.  Suppose  partof  the  demand  (455') 
is  barred  by  the  act  of  limitations,  how  is  the  Defendant 
to  take  advantage  of  that  circumstance,  upon  ;»  plea  in 
abatement,  or  how  is  the  Plaintiff  to  know  of  his  inten- 
tion to  take  advantage  of  it  bef  ire  the  trial  ?  Is  the  De- 
fendant to  be  permitted  to  plead  a  plea  in  abateiTient,  and 
to  give  the  statute  in  evidence?  Suppose  he  has  a  sef  off 
reducing  the  sum  below  fifty  pounds,  is  that  to  be  a  set  off 
upon  this  |)lea  in  abatement  without  notice  given  ?  If  not, 
how  is  ilie  sum  really  due  to  the  Plaintiff  lo  be  asi  ertain- 
ed,  if  the  verdict  upon  such  a  plea  should  fiml  the  sum 
really  due  to  be  less  than  fifty  fioiinds,  &  the  Plaintiff  ;hen 
makes  the  attidavil  required  by  tlie  act,  will  the  court 
give  judgment  in  chief  upon  such  a  finding?  They  can- 
not, fur  the  jury  up<in  issue  joineil  on  a  plea  in  al):ilement, 
are  not  to  assess  damages  but  only  when  they  find  igamst 
the  plea  :  in  the  case  I  have  supposed,  they  woulil  find 
f(M'  it.  It  is  argued,  a  plea  in  abaiement  is  most  proper, 
because  the  Plaintiff  cannot  be  nonsuited  after  tlie  finding 
of  the  jury.  It  is  true,  he  c  uiiiof  voluntarily  suffer  a 
nonsuit  i)i  coiiiukiii  cases,  nor  indeed  can  he  in  common 
cases,  be  nonsuited  against  his  consent ;  but  if  an  act  em- 
powers the  court  to  nonsuit  him,  whethei-  he  will  or  not, 
they  may  in  tliat  particular  case  give  judgment  as  incase 
of  a  nonsuit.    This  is  only  a  critical  objection — it   does 

66 


524  HAVAvoon's  reports. 

Mar.  1797.  not  meet  the  art.     We  are  to  form  our  judgment  upon 
^^""""^"^  tliat.  anil  its  true  meaning.     It  i"  plain  rrom  the  rases  I 
hav"  i)<  t'tre  statrcl,  the  nbjects  of  the  act  cannot  be  attain- 
ed l)V  a  plea  in  abatement. 

Tlie  court  gavt-  judgment  of  respondens  ouster,  and  all 
costs  n|)  to  ihe  time  of  overruling  the  plea. 

Note Vide  Allen's  exr's.  v.  Stokes,  ante  122. 

Per  curiam — Where  the  Defendant  die.s,  there  must  tie 
a  sd- fa.  against  the  executors,  to  make  liicm  parlies. — 
Bnl  ^Uiere  tiie  Plaintiff  dies,  there  needs  no  sd-^a.  for 
the  l)i'fe"ilant  is  continued  in  court  twi  terms  by  the  act 
of  1786,  ch.  14,  and  1789.  ch.  57.  sec.  7 — and  the  .-xecu- 
tors  uiHj  ciiine  in  atnl  |iray  to  be  admitted  to  |n-osecu(e, 
and  the  court  will  permit  tiiem  to  do  so  wiihuut  any  pro- 
cess. 

State  V.  Bromfield  Long. 

Naked  confessions,  unattended  with  circumstances,  are  not  sufTicient 
to  convict  of  a  capital  crime. 

Indictment  f  >r  horse-stealing,  upon  which  the  evidence 
was — thai  the  horse  was  missing,  and  about  tliiei'  days 
afttrw  arils,  two  men  came  with  the  horse,  and  Long  lied, 
to  the  III. use  of  tlie  owner.  Long  confi-ssed  to  the  owner 
he  iiad  taken  the  hinse,  and  begged  f>irgi\eness.  The 
two  mrn  who  brought  him  were  not  [)i-esent  at  the  trial, 
and  there  \\as  no  other  circumstance  proved  in  the  case. 

Per  curiam — Where  A.  makes  a  confession,  and  relates  . 
ciniimstances  whi'h  are  iiroven  to  have  actually  existed 
as  related  in  the  ciMifession,  that  may  be  evidence  sulKci- 
ent  for  a  jury  to  proceed  upon  to  convict  the  prisoner; 
but  a  nakrd  coiifssion,  unattended  with  circumstances, 
is  not  siiflicient.  \  confession,  fiom  tin-  very  nature  of 
the  itiing,  is  a  very  douhifnl  s|)ecies  of  evidence,  anil  to  be 
receivfd  with  great  caution.  It  is  hardly  to  he  supposed 
thai  a  man  perfectly  possessed  of  liims.  If,  would  niaki- a 
confes'^ion  to  take  away  his  own  life.  It  must  genei;ally 
procerd  from  a  proinisi-  or  hope  of  favor,  or  frtun  a  dread 
of  piinisliment,  and  in  such  situations,  the  mind  isa^iia- 
teit — the  man  may  he  easily  tiinpted  to  go  liiithei'  ilian 
the  liiiih.  Besides,  the  witness,  nspei  ting  the  confes- 
sion, may  have  mistaken  his  meaning.    How  easy  is  it  to 


(456) 


Haywood's  eeports.  525 

understand  the  speaker,  difreicntli  fioin  what  lie  meant ; Mn.  1797. 
and  the  !4iiiallest  mistake  in  this  p:ir'jciilar.  inis^lit  i-i'oxe  ^■^'^'■>*>' 
fatal.     As  (here  are  im  cntifirmatfiry  ciiciimstaii<"es  in  the 
pieseiit  case,    it    is  bettei-  to  arquit  the  prisoner.     The 
jiiij  found  him  not  .Sfuilt_y. 

Note.-  Vide  I  Phil,  on  Evict.  86,   contra. 

Clippies,  GiiHi'dian  of  Allen,  v. . 

\m  caveat,  a  verdict  w:l^  found  against  ttic  PiainiifF,  w  hirh  was  cunfirmed 
in  tMf  County  L'ourt,  betorc-  which  linie  Imweier,  ti'  Piaintiffhad 
oblai  ed  a  grim  Irim  the  St .te  tor  ihc  land  ;  and  n  -w  in  ihe  Supe- 
rior Court,  it  was  '  eld,  that  thi  grant  could  not  be  impeL.niicd  at 
law,  but  !is  ih.  Del.  ndant  appeared  ti>  have  had  the  justice  of  the 
case  on  his  side,  he  shall  have  tlie  costs  of  the  caveat. 

This  was  a  caveat.  Uji'ih  tlte  trial,  the  jm  y  fotiiid  for 
the  party  opposed  to  Mr.  Cupples,  wlitcli  veidirt  was  mn- 
firined  b>  the  Comity  Court;  belore  which  lime.  Jlfr. 
Cupples,  fill-  his  ward,  had  ohtained  a  .^latii  fVoiii  the  Se- 
cretaiy's  nffiie  ;  and  the  veiditt  and  pfnccedmjjs  of  the 
Coiinly  Court  were  moved  into  this  couit. 

Per  curium — Tlierc  have  been  so  many  derisions  that 
a  gfarit,  Hitiiiiiii;h  irregularly  ohiaiiied,  is  valid  in  laW, 
that  we  think  obisiKes  bomid  by  them  at  picsein — al- 
though we  fannot  subscribe  to  the  reasoning  of  thcin,  of 
couise  it  is  useless  now  to  consider  whether  these  objec- 
tions to  the  verdict  are  valid  or  not.  However,  with  re- 
spect to  costs,  it  is  necegsaiy  to  say  snmetliins — there 
can  be  no  dnuhf,  hut  in  point  of  Equity,  Mr.  Ctipples 
should  pay  Ihein — there  lias  been  lln-  veniict  of  a  jury 
against  him.  and  that  verdict  ronfirnied  by  the  County 
Court  ;  upon  argmneiit  he  has  caused  an  abatement  of 
the  suit,  like  tiiat  partial  ah.iti  ment  vvliicii  sometimes 
happens  in  case  of  the  death,  deslructioii,  or  ceasing  of 
the  piineipal  tiling  in  dispute,  so  that  the  court  cannot 
give  jiidgmeiii  for  it — as  where  an  action  is  brought 
against  {cnaut  per  autre  vie.  and  cestui  qui  vie  dies,  de- 
mandant may  pi-oci  id  for  d. images  for  drienti'm  ;  in  eject- 
ment for  lands  leased,  if  the  lease  expires  In  f.re  a  drci- 
sioii,  PlaiiitilT  may  proceed  for  dainaj;es  and  costs — 
Here,  before  the  suit  is  decided,  one  nt'  the  pai  ties  puts  ^'*^'  ) 
an  end  to  it  by  rrnnmng  out  of  the  court's  p<iwer  the 
thing  in  controver-y .  I'lie  court  laniiot  give  Judgnient 
upon  the  merits  of  the  dispute,  or  for  the  principal ;  but 


526  Haywood's  BEPORTs. 

Mar.  1797  (lie  party  may  piociei!  for  the  accessary.     There  was 
*«^~*''^^  judifnieiit  for  costs. 

Note- — As  to  thf  i; rant's  being  unimpeached  at  law,   see  Hei/nohh 
V.  Flinn,  and  the  note  thereto,  ante  1U6. 

Anonymous. 

Per  Hnwoni),  Judge.  The  Cou'itv  Court,  .'ifter  establishing  one  fer- 
ry at  a  pniticular  |>lace,  has  no  ri;jlii  tues'ihlish  moth'-rsci  nearthe 
formei,  as  to  draw  away  its  profits.  Hut /kt  Sto\b,  .ludgo.  The 
County  Conn  is  ttnpowered  to  establieh  fejries  where  necessary, 
and  ma)  establish  two  at  the  same  place,  if  it  is  deemed  proper  to 
do  so. 

There  was  a  ferry  established  by  order  of  the  Ci>iinty 
Court,  on  the  ri\er  near  the  (•ourt-hou>^e  ;  and  snnieiiine 
afterwards,  upon  some  romplaint  to  the  County  Court, 
that  llie  peo|de  of  the  roiintv  were  often  drlay<  d  on  pub- 
lic tiays,  for  want  of  crafts  and  ferrymen,  they  niiidt-  an 
order,  permiltin.&;  aiiotiier  ]icr$<>iii  on  ihe  otlxT  >^ide  of  ihe 
J,  rivi  I-,  to  iieep  a  ferry   at  or  near  the  smni-  place  ;    and 

from  this  order,  the  former  ferryman  appealed. 

Judije  Haywood — These  orders,  for  keeping;  ferries," 
made  hj  the  County  Ctuiit,  are  like  ^rant-  ol  tin  King 
for  the  sitme  piiipose  in  tin'  E'lijlish  l,iw  ;  and  the  liber- 
ty S'''"'t<"d  hy  them.  Ike  those  in  tin'  Kini;'s  siaiil,  are 
foi  feitahic  for  abuser  or  noit  user :  but  there  is  no  evidf  in;e 
set  lip  ol  iinpi'n|iri'  beliaviom  in  the  ferryman  ;  of  7ioit 
user  or  abuser.  Tlie  act  of  1784,  c/t.'14,  sec.  i  ^'15,  has 
ordered  hoods  to  be  ti;iven  h.>  tiie  lerryniiin,  in  a  lai'se  pe- 
nalty, for  ihefaiijilul  and  punciiiHl  dis(  barge  of  his  duty  ; 
he  is  tiiereby  liable  for  inatiention  in  an}  s|ie('ial  instan- 
ces. Bj  the  Sitme  arl,  five  priunds  penaltv  is  infliried, 
for  delainiIl,^  an>  jiersons  trip  vv;<iit  of  hands,  boats  or  at- 
tendance. Willi  respect  to  ferries,  the  coninnin  law  was, 
that  no  I'ei  ry  shonhl  he  eiert'd  sn  near  another,  hound  hy 
law  to  be  provideil  with  ciuft-,  attendance,  &c.  as  todraw 
away  its  profits.  S  Bl.  Com.  219.  2  Boll.  Ah.  140.  It 
goes  iipnn  tliis  pi'ini  iple,  thai  such  prohihition  Is  ftn-  Ihe 
public  good  ;  as  ihe  best  w:iy  of  enctmragiog  expensive 
undert'ikings,  for  the  service  of  the  public,  is  to  serui-e  to 
the  tindert.iker  the  |irofits  accruii'g.  The  jiiinriple  of 
out  act  fif  A-semhly  is  the  same.  1787,  ch.  IG.  sec.  1,  iii- 
flic's  a  pei  all\  on  those  wi-o  tijin^inoi  |Piisseiigei  s  n-ross 
at  public  ferries,  not  being  duly  authorized.     .So  does  the 


Haywood's  heports.  ^27 

act  of  1764.  clu  ?.  sec.  4.  Tliey  dcim  it  imroasnnnblp,  ♦"  ^]^^:,^![^ 
suff'T  aiKithcr  t(i  iiitci  fere  wiili  the  iiiofps  nf  a  Iciiy  aX- 
re.t<ly  eslablislifd,  at  a  oiiisideiabl'  cxpi  iifC  |ierli;i|>-^  to 
the  owiiei,  as  siirh  inteiTcieiK  e  is  <iis<  omagitii;  l<>  iit.di'i-- 
takiiigs  lif  til;  t  son.  and  ofcouise  di-w<lvai>ia£;ei>t)s  to  the 
piiblir.  '['his  hrin.e;  the  |uin(i|ile  of  "in  law.  I  am  not  for 
albwiiig  another  fi  rry  to  be  esiahli-li.d  at  or  near  the 
same  plaie — it  n^ight  divide  tlie  profits  so  as  to  retidei  the 
ferry  of  no  vabie  to  ei>iior. 

Jiid.!;e  Stone— The  act  nf  As--eiiibiy  empowers  llie  (.458) 
Coimtv  Court  loesiabiish  IVri-ies  whrri-  mresso'V — th'y 
are  tlie  prupei  judi;es  where  it  is  fii  to  eslahii-h  Uiem. — 
If  they  deem  it  pi  oper  to  csialilish  (v\o  feri'ies  at  lln  same 
place,  thej  may  do  -^o.  There  are  two  feiries  iMablish- 
ed  at  the  same  place,  in  seseral  part';  nF  this  Sl.ite — this 
proM's  the  power  of  the  County  Court  to  establish  lliem. 
Sic  ndjouniatur 

NoTK. — That  ihe  County  Court  floes  pcsse'i.s  tlie  power  to  est  iblish 
mo'e  than  one  ferry  ;it,  (ir  lear  the  sami'  ;il:n--  ,  seems  not  'n  luvi-  been 
dou'>ted  in  the  C;ise  ol  Bard  Si  Merrill  \.  Long,  2  Car.  Lain  liepos  69, 
but  ii  is  tliire  said,  tlihi  ilie  public  faiih  plr-(lp;ecl  to  tli  first  s.-.,ritt;e, 
oujjlit  iioi  to  be  viol  it  d,  unless  the  public  interest  nianitistly  demands 
the  establishment  of  an  additional  feiry. 


HILLSBOROUGH,  APRIL  TERM,  1797. 

Kennedy  &  Co.  v.  Fairman. 

Proof  of  the  clerk's  hand-wriling,  in  entries  made  on  the  Piiintiff's 
bdoks,  shall  not  be  admilted  while  the  clerk  is  livinjr,  altlioui;h  he 
may  be  absent  from  the  coiimry. 

Assiim|)sit,  for  jsjoods.  wares  and  merchandize,  sold 
and  delivered,  6cc.  and  upon  the  general  issue  pleaded, 
the  c.iiisi-  now  came  on  to  he  tried.  Tlie  PlaintiH"  i.ftVred 
a  d''posiiion  takfit  in  M^.i-jland,  vvhicii  proved  th-  entries 
ill  till  Flaiiiiiff's  boi.ks,  to  be  in  ilie  haoit- vv i-iiing  til'  a 
person  who  was  a  clerk  of  the  Plainliff's  at  the  time 
when  the  entries  were  made,  and  who  at  the  lime  of  the 
deposition  taken  was  on  a  voyage  to  tlie  West  Indies. — 
iJflDte.  for  liie  Deiendant,  olijei  !e(l  to  this  eudence,  and 
ci  eii  Vorvper  v.  Mtrsdni,  Esp.  Rep.  il.  He  niged  the  dan- 
ger of  siK  h  evule  ICC.  i  v  i!  it  is  receiv  .,ble,  a  man  may  get 
his  clerk  to  make  what  entries  he  ])ienscs,  and  to  what 


'^  MAY  wood's   reports. 

^^,^^„^' amount  also  he  pleases,  and  tlirn  set  out  on  a  voyage  t« 
till'  East  (n  Wcst-liKlies,  and  the.  entries  will  enable  tlie 
priiTipal  to  i'ei"o\ec  the  monies  rontained  in  iheni,  by 
pctnin^  'lie  hand  wiitiiigoftbeclei k.  Williams,  e contra. 
Sticli  e\  ideiire  h-ts  been  admitted  in  one  courts,  li  was 
admitted  in  a  rase  wt  Fa>eltr\  ilic.  where  the  Plainliff's 
clerk  lirtd  fjonc  to  some  of  the  Noi  :bei  n  Slates. 

Haywood,  Jii(l4;e.  — It  has  been  admitttd,  I  believe,  in 
the  CAM-  cjied  i  y  Mr.  ff'il limns  ;  iliai  case  was  riled  and 
staled  by  some  of  the  bar  at  Fi.vciieville,  in  tlie  course 
of  ihe.il-  artci'inent,  some  time  .ifier  i'  took  place.  I  was 
infoi'ined  of  the  derision  soon  after  it  took  place,  but  for 
my  ortti  part,  I  was  alwajs  opposed  to  the  principle  of 
it,  and  took  the  earliest  opportunity  at  the  next  term 
aftei  it  hap|)eneil.  and  at  FH>e(te\ille,  where  the  decision 
was  si\en,  to  a^ive  it  my  disapjnobation.  There  a  case 
came  before  ihe  court,  where  the  clerk  had  .«;one  to  Geor- 
gia, and  it  was  offered  to  substantiate  tlie  account  by 
proof  of  his  clerkship  to  the  PlainHff,  and  that  the  en- 
tries were  in  his  hand-wriiins:.  This  evidence  was  re- 
jected by  myself,  and  Judsce  Williams  seemed  to  concur 
thai  the  evidence  was  not  pinpcr.  i  am  of  opinion  most 
clearly,  the  evidence  now  offered  is  improper,  and  ought 
not  be  received  for  the  reasons  offered  by  the  Delendani's 

(459)  •'ounsel.  The  arlmission  of  such  testimony  would  bo 
imm  diatcly  followed  by  a  long  train  of  frauds,  as  the 
committing  of  thein  would  be  rendered  so  easy  and  in- 
viting by  it. 

Judge  Stonr. — 1  am  if  the  sameopinion.  We  should 
take  care  not  to  open  a  door  to  thi-  practice  of  frauds. — 
The  receiving  of  such  testimony  is  certainly  liable  to  the 
inconveniences  mentioned  by  the  Defendant's  counsel. — 
The  evidence  was  rejected. 

Anonymous. 

No  point  can  be  niiscd  in  a  special  verdict,  except  what  appears  upon 
Ihe  record.  No  pt-rson  can  plead  the  statute  of  limitations  except 
the  D>  f'endant.  T  re '■laiutr  ol  limitations  will  run  although  the 
Det'emlant  may  b'  out  of  the  country. 

This  was  a  special  case  for  the  opinion  of  the  court, 
in  wliidi  the  questi<iii  pioposed  was,  whether  Ihe  act  of 
limitations  wouhl  run  igainst  the  I'lainliff  when  the  De- 
fendant was  beyond  sets.  And  Jlr.  Duffy  biDiight  on 
another  question,  which  was  not  on  the  record,  butwkich 


Haywood's  ukpouts.  529 

as  to  its  subject  matter  lie  Siiid  lie  could  make  out  byA.pr.l797. 
proof;  iiiiiiiply.  wlictlii'r  n  pi-rsun  rnlli'il  into  cimit  -as  ^■^'^''^'^ 
gariiisliei',  oiilil  [ih-ad  tiie  act  of  limit. itious  for  ili'  pi'io- 
cip.il  Defendant,  wlios  iiropiM'tx  was  iittariiod.  For  the 
latttr  point  Mr.  Duffy  ciud  2  Si  Rep.  762,  to  764.  and 
as  lo  tlif  first,  liP  argufil  tli  ii  by  tlio  Equity  of  tlie  act, 
it  ous^lit  iioi  to  run  vvlicii  a  Dclt-ndaur  whs  beyond  sea. 
The  reason  why  length  of  time  is  a  b.ir  at  all.  is  bo<rtUse 
of  the  |iresuiiii)tion  from  liiencc,  that  the  deiil  is  satisfied, 
tliO(ii;li  the  evidi'cire  of  a  disiharge  is  losi — wliere  such 
presumption  cannot  fiii'ly  arise,  the  act  will  not  attach. 
It  cannot  fairly  arise  hi-re,  for  tlic  Defendaoi  hath  been 
absent  ever  since  i  he  accruing  of  the  debt.  We  may  even 
suppose  from  this  record,  the  debt  was  not  roiitracied  in 
this  country  b.it  beyond  sea,  w  liere  the  Oefendiiit  resides; 
if  so,  perhaps  the  debt  is  not  siiliject  to  our  act  of  limita- 
tions at  all — certainly  the  act  diil  not  begin  to  run  in  this 
country,  and  if  ii  did  not,  the  beiii^  beyond  sca  is  within 
the  saving  of  the  act.     Davie  argm-d  e  contra. 

Per  curiam — We  are  very  chMidy  ol  o|)ioion  tiiat  the 
act  uf  limitations  cannot  be  pleaded  by  any  other  person 
than  the  Dtfendant.  It  does  not  appear,  lio\v.-ver,  by 
the  record,  that  the  jilea  waspleadcti  b>  i  he  garnishee,  and 
we  Cannot  receive  any  verbal  testimony  of  that  fact.  vVe 
are  bound  to  follow  the  recoiil.  As  to  the  point,  whether 
the  act  will  run  against  (lie  I'lainiiff  wiiilst  tne  Defend- 
ant is  beyond  sea — the  DelVndant  was  in-  fact  in  ihis 
ci'iiiiiry  when  the  debt  was  contracted,  thougli  that  is  not 
stilted  in  the  reconl  so  as  to  enable  us  to  take  notice  of 
it — laying  that  out  of  tiie  case,  our  art  makes  no  saving 
in  lavor  of  a  Plaintiff,  where  (he  Defendant  is  bejond 
sea.  The  British  ait  which  had  the  same  savings  as 
outs,  was  always  construed  not  to  save  tin-  Plaintiif's  ("450^ 
action  when  tlic  Dcfendatii;  was  beyond  sea,  and  that  oc- 
casioned the  4ih  and  atii  Anne,  c.  16,  s.  19.  if  the  De- 
fcniiant  was  in  this  country  wlien  tlie  contract  w.is  made, 
and  the  act  began  lo  run  asjaiiisl  the  Plaintiff,  it  will  run 
on  iiotwiihstaoding  the  Dererrtjant's  removal;  or  if  it 
had  not  began  to  run  before  his  removal,  his  absence  will 
not  suspend  its  Ojieiation  ;  or  if  he  resided  beyond  sea 
at  the  time  of  the  contract,  and  the  Plaintiff  will  make 
use  of  tli(^  remedies  offered  by  our  courts,  he  must  ;iccept 
of  iiiem  upon  the  trrnis  imposed  by  our  la<.v  ;  that  is  10 
say,  he  must  bring  his  suit  within  three  years.  Length  of 


530 


HAYWOOD  S   REPORTS. 


Apr  1797. tiujp  jg  naturally,  and  every  wIkmc,  presumptiuii  of  pay- 
"^^"""^^  iiH'iii  ;  vvlierr  no  limr  is  liiiiilcd  Uy  law,  ilie  pn-sumptioii 
!•>  left  to  be  i^DVtM-iii'd  by  surlt  rirciimstaiicps  as  arc  suffi- 
cifiil  to  raise  it  ;  where  iiie  law  lias  fixerl  tlic  time,  ilie. 
pie»utn|)tiiiti  iH  not  left  t»  be  re^^nlated  by  opinion,  but  it 
must  arise  after  tli'  laps"  nf  ilie  prescribed  time.  If  in 
tins  couiiti-y  no  time  wis  inniied  by  an  express  law,  yet 
payment  of  this  debi  miglit  b.'  inferred  from  a  lapse  of 
three  years,  wherever  it  was  contracte<l.  This  proves, 
that  all  r.inti  acts  wlierever  made,  are  subjt-ct  lo  be  af- 
fected by  the  lapse  of  time  in  every  country,  paiticularly 
by  a  lapse  of  iliree  years,  when  there  is  no  circumstance 
atteiidin,^  tlie  case  that  can  legally  save  the  PlaintiBf's 
right. 

NiiTt.— Upon  the  poinl  of  ihe  act  of  limitations,  see  Ridley's  AJmWs. 
v.^  Tliorpe  2  Hay.  343.  McL.ilan's  Adm'r.  v.  IliU'e  Ex'r.  Con.  Rep. 
479  Junes  V.  lirudSe,  2  Murjih  i94,  Ahich  are  CDnstniclioiis  upon  the 
act  01  1715,  c  48.  I'iij  twM  fi:s  o(  tliese  cises  would  seem  to  astab- 
Jisli  the  position  that  the  act  b  gnis  to  run  against  the  cUiim  before 
th^ie  IS  any  person  in  existence  who  Can  assert  it,  but  the  last  case  , 
decules  that  then-  must  be  somi  pL-rson  in  existence  at  the  time  of '.he 
deai'i  ot  tlie  de.tor,  who  might  have  asserted  his  cl.iim,  in  ordpr  to 
gue  i-flecl  to  the  siatute  I'his  case  also  m.-ntioiis  tnat  in  the  case  of 
McLetlun's  Adm'r.  v.  nill'.i  Ex'r.  the  tact  tliat  McLellan  was  alive  at 
Hill's  deatli,  is  omitted  in  Co'i.  /?e/>.  so  that  thai  case  esiablisUes  nothing 
m  r^-  thin  th.i  wlien  the  stauii.-  once  begins  to  run,  nothiotj  cm  stop 
it,  whico  IS  well  esialilished  by  II  he  authi.iiiies.  Would  not  the 
principle  adopted  in  Jones  v.  Broddie,  equally  apoly  to  the  case  where 
there  IS  noUelend.int  in  lliiscouniiy  to  wnomthePlaintilfcouldapply ' 

Anonymous. 

Where  two  judgments  are  obtained  ayainst'an  administrator,  the  first 
an  absolute  one,  but  the  seroid  »  quando  judgrmot,  and  assets  af- 
terwards come  lo  his  hands,  Hatwuod,  Jud^je,  -.aid — thai  the  assets 
must  111  iipplitd  to  the  lirsi  juiiginent  ;  but  Stonk,  Judge,  seemed 
clear,  thai  they  should  go  to  ihe  satisfaction  ol  the  second. 

This  was  a  sci.fa.  to  have  execution  out  of  assets  come 
to  Ihe  hands  of  ihf  Defenilant  since  this  judgment  obtain- 
ed ug.iinst  him  of  ass.-is  infuturo.  To  tliis  sci.fa.  the 
Deli-iidaiii  pleadiMJ  ,iinou.:'st  other  thin,^s,  a  former  jud^-  , 
mem.  Tlie  jui)  found  a  former  judi^meni  recovered  At 
Wilmington,  not^ei  ^ati^fIcd,  and  that  liltcen  pound-,  bad 
come  to  the  Difimlani's  hands  since  ilie  Juda;inent  on 
Willi  ii  this  m.  fa.  is  siouudd,  which  was  a  judgment  to 
be  s.itisheil  quundo  assets  acciderint. 

SxoNi:^,  Jiisiice — This  hltceii  pniitids  must  be  applied 
towards  satisfaction  of  the  latter  judgment.    As  to  the 


Haywood's  reports,  531 

former  jiulgmpul,  it  ih  not  a  jmlffinetit  to  be  satisfied  out  of  '^pr-  '^797. 
assi'ts  iiifidnro;  and  whi'n  obtained,  it  imist  Imvi'  been  -^~''~^^^ 
on  tlie  adini^sidu  of  (lie  DeCeiiilaiit  that  In'  had  ihin  .issets 
to  siilisCy  it,  otlicrwise  ho  would  have  pleadi'd  ,i  want  of 
them,  ami  then  liiejodgment  vMiiild  have  been  abs'tlufe 
as  to  the  assets  he  liad,  and  fof  the  residue  to  lie  levied 
Gilt  of  a'iset'i  winch  in  fuhiie  should  come  t<i  his  hands. 

Haywood,  Justice — When  a  jud.qinent  is  rendered  (4|61') 
against  an  execumr  oi-  adniinisMator.  iliouj^h  it  be  ,t!;ene- 
rally,  to  be  levied  lie  bonis  teslalons,  witliout  saying  any 
thinj^  of  assets  iufuturn,  tli.ii  judgment  must  be  satisfied 
prior  to  any  subsiquen'  one.  The  executor  may  havi- suf- 
fered i(.  knowing  assets  wtnild  afteiwaids  come  to  bis 
hand-i  sullicieni  to  satisfy  it — by  adfoitiing  assets  ije  lias 
made  himself  absolutely  lial>!e  to  the  debt.  Shall  be  be 
absolutely  liable,  and  yet  not  pi^rmitted  by  law  to  I'eirn- 
burse  himsrii'  out  of  assets?  Must  he  jiay  Jhe  former 
judgment  out  of  his  own  pocket,  though  be  lias  assets  in 
his  tiands  sufficient  to  satisfy  it?  Sn}i|iose  lie  hail  paid 
this  judjiiment,  or  the  debt  bef  ire  judgment,  witii  Uisown 
money,  trusting  to  tlie  coming  in  of  assets  for  his  reim- 
bursement, would  iie  not  thereby  have  entitled  himself  to 
retain  assets  to  that  amount  when  they  sliould  come  into 
his  possession  ?  If  beC')ol(l  thus  reimburse  himsell,  liav- 
itig  paid  the  debt  or  judgment,  why  iioi,  when  be  has 
made  himself  lialile  to  the  payment  of  it  i  It  is  well 
known. an  exe(  uior  may  plead  judgments  obtained  against 
him  wiieu  subse(]uently  sued,  and  there  is  no  instance  of 
a  replication,  that  tlie  assets  came  to  hand  alter  the  judg- 
ments were  obtained. 

Some  of  the  bar  not  concerned,  expi'essed  a  clear  opi- 
nion that  tiie  fifteen  pounds  sliould  lie  applied  to  the  lat- 
ter jud;;ineiit,  whereup  111.  I  he  court  took  time  to  advise  | 
am!  afterguards,  tiie  cause  being  again  mentioned,  Judge 
Haiwood  said,  he  continued  to  be  of  the  same  opinion  be 
Was  the  other  day.  lliere  were  not  many  auihoiuies  in  ' 
poim  —  he  bad  however  Ibund  one  in  12  Mod.  196,  <\bei'e 
it  is  laid  down,  thai  the  pleading  of  ihi  juilgment  IS  a  pro- 
tection of  the  assets  which  you  have  or  may  liave,  until 
the  judgment  be  satisfied. 

Stone,  Justice — 1  do  not  think  that  case  applii-s — I 
am  ot  the  same  opinimi  I  was.  The  fil'tten  iionnds  sliould 
be  ap(ilied  to  tiie  lattrr  judgment.     Sic  adjournal ur. 

Note. — Vide  1  Hawiil.  336  6,  wlitre  il  i>  sai.l — "  vVuew  'li    cx'  cu- 
tor  pleuds  several  juilgments  outstanding,  and  the  Plaintiff  takes  a 
67- 


532  .  Haywood's  reports. 

Apr.  irPr.jucIgnient  of  assets  infuturo,  tin-  fiitnri'  HssetB  shall,  in  the  first  place, 
<i^-v-^^  be  ap|>l    (1  to  lliosc  jii   j;meiits.     H-nc.-,  there  is  ;•  diffnencc,  as  to 
the  tiiMire  assiMs,  bei«i-.  n  ;i  pea  ■■'■  jilene  adminisiravil  generally,  and 
-a  specjal  plea  ot  plene  adtnimslravit  prteter  juJgnients."- 

SoutherlKinl  v.  Mallett. 

A  decree  will  be  mieied  on  an  aw:ird,  at  the  term  to  which   it  is  re- 
turned, it  no  exceptions  to  ilie  aw  ird  be  made  at  that  time. 

I'his  was  a  suit  in  Equity,  and  all  malters  in  dispute 
had  breii  loleiii  «i  to  aibii' atoi  s,  wlii>  mailo  an  award  in 
faiiif  til'  Ciin)|ilainanl — who  now  moved  fr)r  a  decree  ac- 
cordiiij;;  i"  the  lenns  td  the  submission.  fViUiams,  e  con- 
tra—  A  di'(  rC''  raiiiiot  now  be  entered  on  the  awai'd,  for 
it  wa>  oidy  returned  Jo  this  term.  The  Defendant  is  ab- 
sent, iia.s  not  bei  II  served  with  ihe  award,  and  has  had 
no  .ipportunitj  to  extept.     Davie  was  stopped   by   the 

■'  COUlt. 

(462)  Per  curiam — The  practice  never  has  been  to  wait  for 
exciplioiis  againsi  an  award.  The  party  is  present  at 
the  <xaniti>,ttioii  by  the  arbitrators — he  is  notified  of  the 
time — he  may  ap|il>  at  the  ulinnitte  time  apjiointed  for 
its  ileiiverj  or  ptibitration,  and  jviiovv  ihi-  contents — he  is 
or  oui^ht  to  be  in  court  attending  on  Iiis  suit,  and  may  ex- 
cept to  any  tiling  improper.  If  Mr.  Ifilliums  will  now 
make  aii>  <  xceptions,  w<-  will  hear  them,  and  if  proper, 
give  lime  lo  support  Ihein  ;  but  we  will  not  wait  foi  the 
party  to  make  exceptions.  No  exceptions  being  made, 
there  was  a  decree  according  to  the  award. 

Anonymous. 

■The  fifteen  days  before  tlie  lerm,  in  which  appeals  must  be  filed  in 
th<  Superior  Couv:,  are  inclusive  ni  the  day  on  which  the  appeal 
is  filed,  and  also  ot  tlic  fir.st  day  ol  the  term. 

This  .ippeal  was  lodged  with  the  clerk  of  the,  Superi- 
or Court  on  the  28lh  Si  ptember — the  term  commenced  ou 
the  6th  of  Ol  tober.  After  argument  by  Davie  and  ff^il- 
liams. 

Judge  Haywood — I  am  of  opinion  the  Lpgislaturc  al- 
lowed Hlteen  days,  fur  the  purpose  of  aftortling  the  appel- 
lee time  to  come  to  the  office  and  see  whether  oi-  not  the 
papers  were  lodged  there,  anti  afterwards,  to  go  to  any 
part  of  the  State  and  get  his  testimony  and  return.     In 


IIAYWOOU'S    REPORTS.  533 

other  words,  tliat  it  mhs  iiiteiided  ti^  billow  him  fifteen  tra-  Apr.  i797. 
vellinaj  <la)s,  nfler  knowiria;  tli<  appi-il  jMpirs  woic  lud-  -^"•'^^^ 
ged  ;  ai.d  tliat  thi'icCorp  there  'houM  hi  fiftfcn  cle.ir  days 
excliidin.a;  the  day  i>f  filine;  ;iii(l  the  first  day  of  the  ti-rm. 
Siippiisf  they  hitd  said,  ihc  pupors  shniiM  have  bivit  lilt'd 
oiif  day  liefiire  the  teriii  :  if  it  rimld  he  fi'Ml  on  Ihf  fii'st 
da}  of  thr  term,  the  appellei-  wmlil  have  no  liiiie  to  pre- 
pare f  if  filed  on  the  day  before,  and  that  alloweil  in  be 
one  day,  ii  might  be  filed  nii  the  last  iii'iment  nt  tiiat  day, 
and  the  term  roininence  on  the  next,  so  there  would  be  no 
time  allowed. 

Stone,  Justice — In  a  case  at  Edentim  last  term,  it 
was  decided,  that  the  day  of  filio!:;  and  the  first  day  of  the 
term,  were  both  to  be  reckoned  inclusive.  The  reasons 
of  this  decision  then  appeared,  and  do  now  appear  to  me 
to  be  strong.  These  were,  that  heavy  penalties  weie  an- 
nexed to  liie  not  bringing  a  transcrip'  up  in  time — affir- 
mation of  judgment  witli  double  costs  by  the  act  of  1777, 
twelve  and  an  half  per  cent,  interest  by  ihc  act  of  1785,  *  , 

ami  therefore  the  act  ought  to  be  so  construed  as  to  avoid 
the  penalty,  and  not  so  as  to  multiply  the  chances  of  in- 
curring it.  Mol•eo^el•,  the  right  of  appealing  is  favored 
in  law,  and  ought  not  to  be  atiridged  by  the  construction 
we  put  upon  the  act. 

Jutlge  Haywood — If  it  has  been  decided,  though  a- 
gainst  my  opinion,  as  it  is  only  a  matter  of  pi  act  ice,  and 
as  uiic  itainty  in  such  cases,  is  a  great  evil,  i  h,<d  laiher     (^iQ^) 
adopt  the  decisi(»n   than  leave  the  matter  in  uncertainty.     ^ 

Per  curiam — The  papers  were  hroiight  up  in  time ;  let 
the  cause  be  placed  upon  the  trial  docket. 
Note. — Vide  Anonymous,  ante  402. 

State  V.  Bradley.     [8.  C.  ante  403.] 

The  words  assigned  in  an  indictmeni  for  perjury  wfre  that  "  Galling 
did  not  interrupt  ih<;  constable  in  driving  tuc  catik"  to  GatUng's 
house,"  and  the  words  proved  were,  that  "  Galling  <l.d  n.)i  assist 
in  driving  the  cattle  irom  Uie  officer."  It  was  In  id,  that  th<?  words 
charged  must  he  clearly  and  evidently  of  thf  same  meaninK  without 
the  help  of  any  implicaiim,  or  any  thing  extrinsic  ;  and  that  in  this 
ease  the  variance  was  fatal. 

This  cau.se  was  now  hronght  before  ihe  court,  and  they 
took  time  to  consider  wi  it,  and  m  look  into  authorities, 
aud  after  a  few  days  gave  judgment. 


584  haywood'p  keports. 

At)'. 1797.  Per  mrinm — We  liH\e  lookrd  intu  the  aulhnritips  in 
^-^■^"^^  Salk.  660  Doug.  193,  665.  Cowp.  Z-29.  1  Term  235.  2 
Ji  P  C.  436.  s.  36.  Tlie  irsiill  of  il)fS»"  rases  Hpeins  to 
bf.  tlial  Miij  the  li-ast  variatice  in  (he  deHfription  of  a  i-e- 
COfd,  IS  fatal — and  as  to  tlim^s  wiifien,  tliai  they  may  be 
desjiibed  two  ways  ;  either  hy  the  tenoi' or  accoi'ditig  to 
tht-  substance.  When  dcsciilied  by  the  lenor,  the  very 
■words  inusi  be  followed  ;  but  ihe  onii-ision  of  a  letter, 
not  alierine;  the  word  to  another,  is  not  fatal.  If  you  de- 
scribe the  thins  written  by  its  substance  and  effect,  then 
you  need  not  si-t  down  tlie  xery  words  written:  but  if 
you  describe  the  same  sense  and  memiing,  it  will  <l'). — j 
As  to  the  words  spoken,  there  can  be  no  lenor  of  them, 
and  tlierefore  where  ilie  sense  and  meaning  nf  the  words 
set  flown  in  the  indiclinent,  is  precisely  (lie  same  witli 
those  proven  in  the  evidence,  though  not  the  very  same 
Wiw  ds.siich  evidence  will  support  tin  indictment ;  but  then 
tht  meaning  must  be  e\  idintly  and  clearly  the  same, 
wiihoiit  the  help  of  any  implication  or  any  thing  extrin- 
sic. The  oath  ch-.trgetl  to  be  sworn  is,  that  Oatling  did 
not  iilPiriipt  the  Constable  in  driving  the  canle  i-.  Gat- 
ling's  house  :  the  inidence  is.  he  swc)r<'  Outlivg  did  not 
assist  in  (li-iving  the  cattle  from  the  oiBcei".  Tie  words 
contained  in  'he  evidence,  are  not  necessarily  of  the 
same  sense  jind  meHuing  with  those  laid — therefore  let 
the  judgment  be  attested,  and  it  was  arrested.  Vide  L. 
iJ.  1515.  2  SIra.  787. 

l^oTf..- State  \.  (vffey,  N.  C.  Term  Jiep.  272.  See  also  W/iitaker 
V.  Frietnan,  1  Dev.  Hep.  271. 

State  V.  Adams. 

In  an  indictment  for  horse-stealing,  the  jury  may  inter  from  circutn- 
stances.  ihat  the  horhe  was  t;<ken  by  the  prisoner,  in  the  district  in 
which  he  is  tried,  although,  he  was  never  seen  with  the  horse,  in 
that  district. 

Indictment  for  horse-stealing,  and  not  guilty  pleaded  ; 
and  I  p"n  (rial,  the  evidence  was — that  the  horse  was  lost 
in  W.  Ivc  county,  on  tlie  lO'h,  and  was  in  Adams'  posses- 
sion, sixty  miles  from  the  place,  on  the  16ih  of  the  mouth. 
Ther'  he  sold  him  to  one  of  the  witnesses,  and  said  he  had 
putthiised  him  a  few  da^s  hifore,  near  Edeiiton,  distant 
finui  'lenceaboiit  iwo  hundred  miles. 

^"ffV'  *'"  •'"  pi  isoner — There  must  be  a  proof  of  the 
taking,  and  that  must  bo  in  the  diytrict  where  the  priso- 


Haywood's  reports.  539 

iier  is  tried.     In  the  pirsent  rase,  tliric  is  no  proof  of  a  Ap>- 1797. 
taking  in  Wike,  liOr  was  ilie  piisoner  tver  se<'ii  in  jo-i-  •^^^"^ 
sessin'n  nf  th^   Imrs"'  in  iliis  «listrift  ;    tin-  plar.   wl'iir  lie     (464) 
sold  llif  luiiM'lo  ilie  \\iMir^«.  is  in  llic  disii  id  nfSali^bu- 
Y\.      It  is  |pii)baUl<'  lif  iiii.a;!''  have  iccci\cd  the  iioi-se  Irom 
the  person  that  did  steal  liiin. 

Ter  curiam — When  a  hoiS'*  is  sf<!len,  and  is  found  in 
piissfssioii  of  a  man,  at  snrli  a  disiancc  frcuii  tin-  place 
whciK  tlie  iiorse  was  uiissini;;.  i;i  ^o  sli-irt  a  tiinf  jifti  r  as 
sln-ws  lie  must  have  romc  direcily  fioni  tliat  pice,  and 
witlioiit  any  loss  of  time,  tliat  is  such  evidence  as  a, jury 
may  infer  ihe  tjiiili  of  ilie  piisoner  upon,  as  i(  raises  a 
vinlfnt  prcsuHiplion  ajjainsi  him,  tlia'  he  wa".  the  taker. 
It  i^  h(iw<  xer,  not  conrlusixe.  Any  cii' uinstiince  indu- 
cing a  pr<iliiihiliiy  that  II. e  pri-;niier  iiiay  ha\''  _s;o'ien  liim 
]|iiin-stly.  ^^ili  nniiei  il  in.pi  upci  loi  a  jur\  to  convict. — 
The  case  in  Ihde,  wlieie  a  ihietw^s  pursut  d.  and  tinding 
himself  pressed,  got  down,  desiiine;  a  man  in  the  road  to 
lioid  his  horse  till  lie  retiiriied,  and  the  innncent  man  vxas 
taken  vxitli  the  liorse,  proves  how  necessary  il  i^,  t"  use 
caution  in  cinivictimis  fnui'ided  ii|iiin  pusnnipiive  testinm- 
ny.  There  i«  hn^ever,  piii  i  of  ihe  e\  idence  in  this  case, 
which  shews  |)i'oliably,  (hat  Ihe  prisoner  did  not  get  the 
hor--e  from  another.  He  said  be  had  piircliased  him  near 
Edentnn — there  was  nut  time  sufEcieni  to  (ravel  the  liorsc 
to  Edenton,  and  b;<ik  to  Ihe  place,  vvlnre  the  prisoner 
sohl  hiir.  If  finin  circuni'ilances  the  jur>  infer  a  taking, 
tlie  inference  also  fidlnvvs  that  he  was  laken  at  the  place 
where  missing,  and  that  was  in  this  district. 

The  jury  found  him  guilty,  and  he  had  judgment  of 
death. 

Galhr'aith  v.  Whyte. 

Per  mriam. — Caveat  emptor,  ap|ilies  where  a  man  piir- 
cliB'^' s  an  aiticle  nf  personal  pi-op"'rty  iiipf  in  the  xrndiir's 
posM  ssiiin.  H>*  iiught  in  such  (  ase  to  i  e(|uir'e  a  wai-ranty 
— t.'O  not  being  in  pnssessioii  gives  reason  to  doubt. — 
Another  case  is,  where  the  thing  sold  has  some  visible 
qu.ilny  vvhich  lessens  its  value.  Where  it  has  a  (ptality 
lesscMJMg  its  valni.',  and  that  is  not  disco>erable  by  ordi- 
nary inspection,  il  is  o'liervvise  ;  in  such  case  tlnre  is  no 
need  of  an  i\i)ess  Warranty — evety  niiiii  is  lioiind  to  bo 
honest — he  ought  to  discover  to  the  vendee  all  such  pro- 


536  ,  Haywood's  kepouts. 

Apr.  I79r.  peptjpg  jis  if  |j„„^v,,  „,ig.||t  [))(il)iibl>    dispose  him    not  to  j 
^''"^■'"'^^  piiirliHSf       It' ^  iiiari  sell  an  iinsoiitiil  lidcse,  wluisc  disiir- 
(465)     ilei-  is  not  Jvimuti,  und   receives  CdII  value  us  lor  a  ••ouiid'' 
hiMSi'.  an  action  lie^  against  the  \tndor  ;  and  tliat  action 
ma>  he  an  assuniiisit  staiiii!;  tlicsale,  and  ihat  the  vendor 
utideitook  that  the  hor.se  was  sound. 

Note. — Up  ■'  the  'iiljrii  '>f  warraiitv  on  the  sale  of  cliattels,  see 
Mull.  JV.  P  (Bnil.  Ed- J  30,  a  t"  3'J  b.  Comyns  on  Co>^.  228  tf.  250. 
Cooper's  Ju.'lituin).  609  Thortipson  v.  Tale,  1  JSIurph.  97.  Lanier  v. 
AuUl's  Adm'r  Ibitl.  .Slieber  y  Jiobinnon  &  nlher",  '2  Miirph.  33.  Gil' 
chriit  V  Marrow.  2  Cur  Law  Ri-p.  607  Erwin  v.  Maxwell  3  Mitrph.  \ 
241  Atires  \.  Parks'  .'Idm'r.  ^c  3 //-mhs  59.  Inge  \.  Bond  &  Sldugh' 
ter,  Ibitl.  101.  Bnttiin  v.  hriiel  &  othas.  Ibid.  222.  It  «;11  be  ><  en, 
ii-uni  some  ofihe  authoriti  s  !■  fvned  o,  tliit  the  pos  iion  'liirt  «  fiilf 
price  for  a  liors^  implies  a  WHvranty  oCsouridnesi,  atthou-h  once  sup- 
posed to  be  law>  is  now  overruled,  both  in  England  and  in  this  State. 

Troxier  v.  Gibson. 

An  amendment  cannot  be  pcrmiited  in  an  ejeciment,  so  as  to  embrace 
land  not  included  in  the  decl  iMtion. 

Ejectment.  The  Plaintiff's  patent  described  the  last 
line  as  riiiinin,&;  a  course  ami  dist:ince,  vvliicli  led  not  to 
the  beginninti;,  but  ihrongh  the  bod>  ol'  tin  land.  And 
the  Plaintiff's  atlottny  in  drauing  the  dcilaration,  bil- 
lowing that  (lescrip'ion  instead  of  saying,  iIkkcc  to  the 
beginning;  so  a^  to  lia>e  included  the  land  in  dispute, 
which  lay  between  the  beginning  puint,  and  iliat  which 
tertninated  the  last  line  as  describeil  in  the  patrtit.  Davie 
I7i<i\ed  for  a  iionsnit.  ■-ajing  it  was  needless  to  go  into  the 
cxaniinaiion  of  testimony,  since  it  was  impossible  for  the 
Plaintiff  to  give  any  evidence  re-pecling  tlie  land  really 
in  dis|iuti'.  as  it  was  not  deinaiided  in  tiiis  declaration. 

Fer  airiam — Land  noi  dintiindtd  tannoi  be  recovered 
by  any  Judgment  of  the  couit  ;  ,^nd  in  the  pu'sent  case 
no  land  is  di'matnled,  bin  <lnvt  which  the  Plaiiiiff  lias  no 
claim  to.  This  point  has  been  nfien  decided  in  our  courts. 
It  was  80  decjdi  <l  in  this  very  i  oiirt  a  few  years  ago,  in 
the  case  ol  Hunter  >\a\  Jones.  Let  the  Plaintiff  he  called. 
The  court  recommended  to  rVr.  Jinffy  to  lake  a  rule  to 
shew  cause  wliy  llie  declaialioi  sli'iild  not  be  amended, 
saying,  perhaps  aiKhorities  may  l)i'  t"iiiid  to  justify  an 
ani'iiilineni.  oi  perhaps  'ht  Id  of  1790  may  authorise  it. 
A  ■nil'  vvas  taken.  Alui  wards  t\.  <  ase  was  argued  by 
Mr.  Duffy  for  the  amendment,  and  Davie  against  it.  JUr. 


HAYWOOD  S'  REPOKTS. 


537 


Duffy  proilucrd  a  ejieat  inunhci-  of  '-.ises,  but  sepincil  t»  ^P""-  ^'^^■ 
rely  >"  ■'■■H^  •><!  tin-  case  in  4  Burr.  2448.  .^'-^^^^^ 

Per  curium — Tiiose  casi-s  shew,  tliat  ihe  (1  inisp  m:iy 
Ue  fiil-,ir.;^'.<l,  b  i:  none  sfo  sd  far  ;is  ti>  slifw.  tiiai  l!ip  ilc- 
sciiptiii'i  wt"  iip  ihiiij;  (Icmuiidi'd  iiiiiy  bi'  all<'i'i'il.  If  it 
coiilil.  a  Di-re;id  i.il  iiiij^ht  be  at  a  .m-iMt  cxpcncc  in  (ire- 
paniij^  to  d«t'('iid  liis  title  fo  'nie  tiM"t  of  laud,  and  aCtcr- 
toiwards  be  fotrcd  lo  go  tbi'oii^li  tin-  same  juiicess  as  to 
anotber,  ;itid  fu-a  iliird.  and  s(i  nu  dd  iiijinitum.  For 
iC  it  is  pr^.pci-  til  alier  till- peii/itiii  iu  tlie  first  iiist.iiice, 
why  slioiiid  it  not  be  done  aftfi'wafds  as  ol'teu  as  the 
Plaintiff  pleases.  If  after  the  institution  of  liie  action, 
the  Delendanf  sells  thai  part,  not  iocliid'd  in  ihe.  dccla- 
laiioie,  and  'hi-n  an  ainendinerit  is  i)erinitie<l,  wliicli  will 
inclu<le  it,  tlnp  rrhaser  liavinic  acquired  the  \.i>i<\  pendente 
lite,  will  he  bonne!  by  lie  r'erision  !h:nia;b  no  p.irly  to  it. 
Th  •  anieicdineiit  would  be  of  liitle  seex  ice  lo  the  I'l.uutifT,  Mcr's 
as  it  would  be  required  ;)f  hiiii  ti>  pay  all  Uic  costs  up  to  ^  ^ 
this  tinu".  However,  it  sulHi'S  to  say,  tliero  is  no  pre- 
cedent in  (h  boiiks  Dir  su;ii  a\i  aniendiucnt — tlic  petitum 
cauoot  be  amended.     'I'be  court  'bought    a   day    »r   two 

■o,  tliat  possibly  it  niii^bt  be  ainended  undei-  the  act  uf 
1790.  c.  3,  s-  9.  but  upon  considei'ation,  we  think  that  act 
does  not  extend  to  this  case.  It  liasbe-.ii  decided,  that  unilcp 
that  act  all  such  matie-s  uf  f.rin  may  be  amended,  except 
such  as  arc  spec!  illy  d<  niurrcd  to  ;  and  that  where  a 
special  demuricr  v.as  not  i>ioper  as  to  the  matter,  no 
anieuduient  could  be  m.nle.  In  ejectment  there  can  be 
no  special  diinurri-r  on  account  of  the  foi-m.  for  (be  De- 
fend.iut  is  admitted  upon  terms  which  pin  hide  it;.}et 
sucli  irrc.<ulaii!ies  as  in  otinr  actions  ini:i;ht  be  projier 
subjects  for  a  sjiecial  demurrer,  shall  iii  this  be  aineniled; 
oti  prwise,  the  ejectment,  which  is  a  liberal  action.  \Miu]d 
be  iu  a  worse  situation  than  any  other.  Speii.il  demur- 
riMs  do  not  lie  for  not  demanding  the  thin^;  intended  to 
be  demau  led  in  any  actiou  ;  that  omission  makes  a  sub- 
stantial defect  in  tlie  declaration,  not  a  mere  formal  one. 
It  1  aiiuot  be  auieiuted  ill  a  point  so  material,  any  uiore 
tlw.ii  a  demand  of  a  horse  in  detinue  or  replevin.  Conld 
be  .iltered  (o  that  of  an  ox.  So  the  amendment  was  re- 
fused. 

Note- — X'iile  .iilamn  oti  Ej>:ctmcn/,W5,  and  quere,  whether  <tich  an 
amcmlmcLit  «..uld  nut  now  be  p:rmii'ecl  und-'i- the  act  of  1790.  See 
(he  cases  referred  to  in  the  note  to  Cowper  v.  Kihjiards,  ante  19. 


538  HAY  wood's  uefouts. 

Apr.1797.  Ail(iti>n)i>iis. 

Tlie  caveator  was  settled  upon  v  fnct  of  apppopriatc^d  land  for  many 
ycurs,   and  sui)pi>sf<l  ilic  lan(i".ii  disiuli-  to  be  included  wthi  ■   his 
bouudanes,   when  in  fact,  it    -.is  not.     The  possession  i>i  st.i'ed  to 
h;ivi.-  b^en  upwards  o\  iw.  ,i!\  oiif  ye  .rs.     It  was  decrl  d,   th  t  the 
W  cavr-aior  was  not  en  iiij  I  liy  ihi.-  riitry  lavs  ^l  1777  and  1779,  as 

not  having  cluimrd  uitui  ui-  timt-  lii.-iited  by  ih,-  act — nor  by  the 
stature  ot  limiialionsof  1715,  winch  :ip|)lies  only  to  claim  mis  umler 

paieola or  ye.  hy  iln-  ..ct  of  179i,  1  miling  ilic  claims  of  the-  St.ite, 

as  that  act  is  bottomed  upon  the  presumption  of  a  former  grant,  and 
is  nut  appticable  to  vacant  lands. 

Per  curium — Tlie  raventor  was  settled  upon  a  traet  of 
ap|ii-i)|)riateil  laud  foe  maii>  years,  and  .su|>p'>se(l  the  land 
-  nou  ill  dispiitf  t<i  be  luciuilc-d  witiiiii  hi^  boiindat'ies  when 
in  fact  it  was  not.  Tins  possession  is  statetl  lo  have  been 
iipv\Hrds  (iliwetii)  line  )i-ai-s.  It  is  nov\  alli-ged,  tlic  ju- 
ry have  found  an  iinpi  opi-r  veiilici  in  deciilini;  the  nijht 
of  entry  to  be  in  tiie  ca\eaiee.  Ii  is  afj^ned.  tha'  the  ca- 
ve^rtor  is  enlilied.  eiihcr  under  the  fiili-y  laws,  tire  act  of 
limitalioiis,  or  tlie  aci  foi'  liinitin!;  the  claiin-^  of  the  State. 
We  will  errnsider  each  in  its  order.  Tlie  act  of  1777, 
ch.  I  sec.  16.  eirtitles  such  as  nad  actually  possessed  c.r  im- 
proved any  vacant  lands,  in  preference  lo  all  others,  to 
enter  and  obiairi  :;i'ants  for'  tin-  same,  so  that  such  en- 
tries be  made  before  the  firsi  of  Jariuary,  1779.  Under 
this  art,  possession  j^ivesa  ri/jhl  of  pre-r-mption  for  a  ler-  ,. 
tain  time.  The  ri,^irt  is  temporary,  and  expires  if  not  i 
exerted  before  tin' pi'iirxl  liiniti-d  b^  theat't  ;  arid  the  land 
became  free  fiw  all  persmis  who  may  ciiuse  to  enier  and 
pay  l(ir  it.  He  has  no  nights  under  this  act.  for  he  did 
not  enter  within  tin-  presi-rilied  time.  Then  the  act  of 
1779.  c/t.  7,  sec.  2,  is  n-lied  on,  which  enacts  that  persons 
f,(-^y.  wlio  liave  setileil  within  the  hounds  of  a  former  entry  or 
*■  ' ''  survey,  anil  have  imjirovt'd  arid  continued  in  peaceable 
possession  for  seven  }ears,  withoui  intcrrnptiou  h>  or 
from  tin-  person  claimin!;.  oi-  declaration  of  righi  'o  the 
perstMi  possessed  under  such  entry  or  survey,  the  pi-rsoii 
clairninj:;  under  such  foi'iner  entry  or  survey,  shall  he  for- 
ever barred  ol  Ills  rit;hi  id' entry  of  liie  land  io  question, 
and  preference  shall  lie  .!;'iien  to  liim  who  setileil  on  and 
coiiliniied  peaceaiile  possession  of  the  same,  &c.  It  is  ar- 
giiril,  that  a  |)ossessioii  of  seven  years  und.'i  this  ac^, 
giMS  a  title  lo  the  piississor.  The  object  of  mis  clause, 
is  to  curiecl  (lie  gviici aliiy  uf  the  clause  in  the  act  of 


Haywood's  reports.  539 

1TT7.  By  that  or  frtrmer  entry  or  survey  in  Lord  Oran-  ^P^-  ^'^^'^• 
•oiUe's  offices  oiititlcd  the  ent'-riT  to  a  pri'fereiice  of  entry  ^■^'"^'''^^ 
ill  iHirs  ;  hikI  by  virtue  of  sucli  formor  entry,  lie  inis^lit 
torn  a  man  out  o(  possi-ssi'io.  who  perhaps  knew  nothing 
of  tht"  former  entry  and  had  settled  up'Oi  the  land  and  im- 
proved it  and  never  had  any  itiiiinatinn  fir  seven  years 
from  the  former  enterer,  of  his  pc-etensions  to  it.  This 
was  a  hardsliij)  arising  under  tlie  tormer  lavv,  and  ih''  Le- 
gislature meant  to  alter  it,  by  derlarinf^  thai  such  (losses- 
sion  should  entitle  the  possessor  to  iire-eniption,  r,tther 
than  the  former  enterer.  They  did  not  intend  to  give 
him  a  iti-opert.\  or  dominion  in  the  land,  without  entering 
it,  and  paying  for  it  to  tlie  State  ;  and  of  necessity,  mis 
right  of  pre-emption  must  he  exercised  within  some  l.in- 
ited  time — for  it'  it  was  confined  to  no  limits,  he  might 
never  enter  at  all,  and  might  always  destroy  annihtr's 
entry,  by  pi'o\  ing  his  seven  year's  possession,  anil  so  hold 
til"  land  ilways,  without  eiilier  etiteriigit  or  paying  for 
it.  This  act  was  made  in  January,  1779.  but  was  intend- 
ed to  regulate  disputes  that  had  arisen  or  might  arise 
under  the  former  act,  and  to  empower  juries  to  decide  in 
favwr  of  possession,  where  ihe  foi'iner  enterer  had  enter- 
ed in  tlie  new  office,  before  tlie  first  of  January,  1779.  or 
wh' re  the  possessor  liad  enltred  hefo.e  thit  time;  for  no 
dispute  could  arise  where  the  possessor  liad  ent^'red,  or 
might  enter  after  the  first  of  Janiiaiy,  1779 — the  foimer 
eiiieri'r  having  made  no  claim  before  The  words  '*  whicli 
may  hereafter  arise,"  refer  to  lisputes  to  arise  upon  ca- 
veats lo  be  entered,  or  suspensions  upon  claims  Uien  al- 
ready entered.  If  therefore  the  possessoi'  for  seven  years, 
who  had  a  riglit  of  pre-empiion,  did  not  exert  th4  iiu;ht 
befoi  e  till  time  limited  by  the  foiim  r  act,  it  expired — tlie 
foriiicr  I'literer  In  forever  barred  to  claim  by  virtue  of  his 
former  entry  ;  but  he.  as  well  as  any  other  citizi  n  iniiiit 
set  up  a  new  claim,  as  for  lands  opi-n  to  be  entert-d  by 
every  citizen  iiidiffereinly.  The  caveator  has  no  right  /-^/.qn 
then  under  this  act  ;  he  has  not  claimed  in  due  time.  ^       -' 

It  is  next  conteiuled,  he  has  title  under  the  act  ollinii- 
tation.s.  1715,  cli.  '■27.  sec.  3  "  No  (lerson  nor  persons, 
nor  their  heirs,  a  Inch  shall  hereafter  have  any  right  or 
title  to  any  lands,  tenements  or  hereditaments,  sliall  ilnTe- 
unto  enter  or  make  claim,  liiit  within  seven  yeais  after 
liis,  her  or  dieir  right  or  title  which  descend  or  accrue; 
and  in  default,  lie  shall  be  utterly  excluded  and  disabled 
68 


540  Haywood's  reports. 


1 


Apr.  1797.  from  any  entry  or  claim  thereafter  to  be  made."  Tlie 
'*^'^'~'>^  act  of  limitations  was  made  to  quiet  disputes  arising  be- 
twei-n  different  patentees  of  tJie  same  land,  and  those 
cliiiiiung  under  them.  It  supposes  tlie  land  to  have  been 
already  appropriated.  It  never  speaks  when  the  ques- 
tion concirns  vacant  lands.  The  preamble  shews,  it  was 
never  intended  to  operate  against  the  King  or  the  Lords 
Proprietors.  The  right  or  title  to  be  barred  by  a  neg- 
lect to  enter  witliin  sfAcn  years,  is  a  right  or  title  which 
by  tlie  common  law  may  be  preserved  by  entry — a  jus 
possessionis  derived  under  some  grant  of  a|)propriation — 
a  lii^ht  totally  distiitcl  from  the  jjis  preemptioms  created 
by  tiie  entry  laws.  The  latter  is  acquired  by  the  circum- 
stances mentioned  in  the  entry  laws,  and  is  lost  by  not 
being  executed  in  due  time.  Tlie  former  is  acquired  ori- 
gintiJJy  by  grant  actually  issued,  and  is  continued  and 
trausuiitted  down  by  mesne  conveyances  or  descents,  and 
may  be  lost  by  seven  years  adverse  possession  of  another. 
The  land  now  in  dispute  never  was  appropriated,  and 
theiotore,  lu  itiier  of  the  parties  can  acquire  or  lose  any 
right  under  ttie  act  of  limitations. 

It  is  next  argued,  that  the  caveator  has  title  under  the 
act  of  1791,  ch.  15.  "  Where  any  person  or  persons,  op 
those  under  whom  he  or  they  claim,  shall  have  been  or 
sliail  r.'nitinue  to  be  in  possession  of  any  lands,  tenements 
or  hereditaments,  under  titles  derived  from  sales  made  ei- 
tlier  by  <  le.ditois,  executors  or  administrators  of  any  per- 
son deceased,  or  by  husbands  and  their  wives,  or  by  en- 
dorsement of  patents  oi  other  colorable  title,  for  the  sjiace 
of  twenly-one  years,  all  such  possessions  under  such  ti- 
tles, Mliall  be  and  are  hereby  ratified,  confirmed  and  de- 
clared to  be  a  good  and  legiil  bar  against  tite  entry  of  any 
person  or  persons  under  the  right  or  claim  of  the  State, 
&c.  provided  the  possessir)n  so  set  up,  shall  have  been  as- 
certained and  identified  under  known  and  visible  lines 
and  boundaries."  Before  this  act,  |iersons  whose  lands 
had  been  actually  surveyed  and  marked,  and  who  had  ob- 
tained patents  which  had  been  lost,  and  no  registration  of 
(469)  them  <o  be  found,  were  liable  to  he  turned  out  of  |>osses- 
sion,  and  in  some  instanres,  hail  actually  lost  their  l<<nds; 
by  peisuiis  who  tn^eied  claims  for  them  as  vacant  lands, 
tliou.!r!i  tiiiie  was  e^ely  reason  l.o  suppose  from  the  length 
of  pos-ii  ssion,  and  from  the  visilile  boundaries  claimed, 
that  the  lauds  had  once  been  appropriated.    The  act  of' 


haywgod's  heports.  541 

limitations  was  no  protection  to  such  persons,  and  justice  Apr,  179?. 
required  for  their  safety,  that  some  Ienje;ih  of  pdiscssion  >s^->^>w 
under  such  circumstances  should  be  tak<n  as  evidence  of 
a  farmer  appropriation  and  grant — and  should  h»r  the 
State  and  those  claiming  under  it ;    to  this  end  the  act 
was  made.     It  never  applies,  but  where  the  circumstan- 
ces of  twenty-one  years  possession,  and  known  and  visi- 
ble boundaries,  induce  a  presumption  of  a  former  grant. 
This  act  is  bottomed  upon  that  presumption.     It  operates 
upiii)  the  supposition  of  a  former  grant  noiv  lost,  and  not 
otherwise.     In  the  present  case,  it  is  admitted  on  both 
sides,  that  the  lands  in  dispute  are  vacant  lands — they 
cannot  therefore  be  a  subject  fiir  the  operation  of  this  act. 
and  consequently  the  caveator  can  have  no  title  under  it. 

Anonymous. 

Mr.  jyonvood  moved  upon  an  affidavit  filed,  stating  the 
evidence  before  the  Justice  of  the  Pearc,  and  shewing  his 
judgment  to  have  been  illegal,  for  a  writ  of  recordari,  to 
bring  the  proceedings  into  this  court. 

Haywoou,  Justice — A  writ  of  false  judgment,  is  a  writ 
of  right,  and  we  cannot  deny  it.  It  is  like  a  writ  of  er- 
ror which  the  party  may  bring  without  leave  of  the  couit. 

Stone,  Justice — The  writ  of  false  judgment  and  tlie 
writ  ofrecordari,  are  not  the  same.  When  a  recordari  is 
moved  for,  I  think  we  have  power  to  refuse  it. — Sic  ad~ 
journatur. 

Note. —The  case  of  5ncAe// V.  ityrrf's  administrators,  which  was  a 
suit  before  a  Justice  of  the  Pe.ice,  who  h.id  given  judgment,  leinoved 
into  the  Superior  Court  of  Halifax,  by  wiit  of  rfcarf/iirj,  was  brought 
on  and  argued  in  April  term,  1797,  but  not  decided,  owing  to  ;<  dift'er" 
ence  in  opinion  between  Judge  Wilhams  and  Judge  Macat.  Whyte, 
for  the  Defendant,  moved  for  nn  issue  to  be  made  up,  and  the  cause 
to  be  tried  by  a  jury.  E  contra,  it  was  argued,  that  tlie  different 
modes  of  bringing  up  proceedings  from  inferior  courts  not  of  recurd, 
are  pone,  reeordari,  faNe  judginent,  and  accedat  ad  curiam.  3  BL  Com. 
34,  37,  149.  The  two  latter  being  the  sjimt-  in  their  ohject  tu  review 
the  matter  in  law.  Fitz.  Nat.  Br  38,  AU  D.  The  two  fnrmerMlso  to 
try  the  matter  of  fact.  Fitz.  JVal.  Br.  160,  162,  Both  issue  to  courts 
not  of  record — their  difference  results  from  the  different  modes  of 
commencin;:;  by  writ — the  recordari  /oguelam,  being  appropriiited  to  the 
removal  of  proceedings  comnie.  cmg  witliout  writ.  In  either  c.tse  the 
Superior  Court  proceeds  on  tlie  plaint,  not  on  the  pone  or  recordari. — 
Fitz.  JVal.  Br.  160.  Note  a.  and  either  Plaintiff  or  Hefeudanl  may 
remove  the  proceedings  by  these  writafor  ^ood  c.uk-  ;  but  thmiliese 
writs  always  issue  before  judgment.  A  recordari  will  not  lie  after 
judgment,  for  the  purpose  of  a  new  trial.    And  as  tWe  writ  in  the  pre- 


542  uaywood's  repohts. 


(4ro) 


Apr  1797  sent  case  was  issuerl  itver  jiulirmml,  iliere  can  he  no  trial  of  thefactf 
v,^^. -..^  upon  il  E  contra — Writs  of  false  judprnent  and  olenor,  are  f"r  the 
sime  ends,  to  rfvl^(■  (rrroneous  judgments — the  firs'  lying  t"  :<  court 
not  of  record,  III  <  tlier  lyinp  to  a  court  of  record.  Sualso  the  wr'sof 
recordari  and  <'\' certiorari,  ure  for  thi  same  end,  to  have  a  trial  de  novo 
•^lletoriT.  r  hi'g  I'l^oiirts  n.tni  record,  the  latter  to  courts 'f  record 
only.  Fiiz.  Nat  Br.  164.  1  Buc  .lb  559.  Tlien  the  doctrine  of  our 
courts  resfj  ctiiifc  certiorari,  II  aiJily  to  recordaris — the  ibjecl  of  each 
is  rendered  a  li  iK  iliffrrnit  lieie  Irom  whai  it  )S  in  EtiRlaod  ;  thete 
the  certiorari  is  used  almost  alwtvs  for  takini;  up  proceedo  ps  before 
jui!:.in  ..t,  here,  most  r  immonly  ifier — why  not  :il.sn  apply  the  recor- 
dari <!•  the  purpONes  of  nfw  rials  f'  r  jii  ^ment.  as  well  as  the  cer- 
tioruri  ?  If  it  be  said  the  writ  ■  t  recorilari  and  f  Ise  juilgni'  iil,  ar-  the 
sail  I ,  then  there  are  some  writs  to  hrinj;  up  proceeditius  lor  error  in 
law,  none  to  rrctify  errors  in  fact  ;  ihere  will  be  no  means  of  etting 
redress  in  ciises  of  improper  decision-  betore  Jifitices  of  tli.  P  tice, 
even  in  such  cases,  wherr  the  Justice  is  a  party,  the  statute  of  aaming 
is  phaded,  or  the  like,  which  Jiisiices  ouf^ht  not  to  try  ;  orwhrrethe 
party  is  un..l'Ie  to  get  sureties  tor  an  ap|v  al  ;  and  besides  till  his,  this 
is  an  iiltf-mpt  to  overturn  ii  proceeding-,  which  has  heei.  cniisiantly 
used  for  six  or  seven  yar-,  now  List  past.  .Iu<lge  Whuims  said, 
th'  If  mit;htbe  a  new  trial  af<  r  the  proceedings  were  removed  by  a. 
recordari,  il  justice  required  it.  .ludge  Macat,  there  cannot. — Sic 
adjowtiatnr. 

Note. — The  writ  of  pove,  is  to  remove  a  plaint  commenced  by  writ 
in  the  County  Court,  which  is  a  court  not  of  'ecord,  into  the  Superior 
court,  when  it  is  apprehended  a  (air  trial  will  n.  t  be  had  in  the  court 
below  ;  and  when  it  is  remov.-d  by  the  Defendant,  tlie  cmise  is  put  in 
the  writ.  When  the  plaint  is  in  tin-  C  iiniy  Court  without  writ,  and 
is  to  be  removed,  a  recordari,  propi  riy  so  ternietl,  issues,  coirimnnding 
the  Shetiflto  record  tlie  ph.int,  and  reiiirii  it  ;  here  al.so,  the  D  fend- 
ant  must  assiirn  cause.  If  tlie  plaint  lie  not  in  tin  Slienff's  court,  but 
in  some  other  interior  court  noi  of  record,  then  the  accedas  ud  curiam 
issifs,  cbinmanding  the  Sheriff,  that  he  go  to  the  court  »n<l  r:iu-e  the 
plant  to  be  recorded  anil  returned.  All  these  writs,  when  issued  be« 
fore  judgment,  are  for  the  sume  purpose — to  have  a  fair  tiial  in  the 
Su  e'ior  Cottrt  ;  but  they  hav.  different  nami-,  for  reison-  peculiar 
to  each.  Where  the  plaint  C' mmences  by  writ,  and  is  already  in 
writi'  g,  the  Slieriffhas  nothing  to  do  hut  to  bring  (or  put)  it  into  the 
cour!  above  ;  and  thi  refore  lo  is  not  commnded  to  record.  When 
th'  plaint  is  not  bv  writ,  but  is  aire  .dy  in  a  Couri  where  he  presides, 
he  ni'ed  not  go  to  mother  eonrt  to  record  it  ;  and  theretore,  Ii'  is 
commanded  simply  to  record  and  return  It.  But  when  the  olaint  is 
wiihoiii  writ,  and  in  another  couit,  where  he  does  not  presid.,  'hen 
he  must  go  the  court  and  record  it  Kach  writ  takes  its  denomination 
from  the  principal  act  or  acts  the  Sh'  riff  has  to  do,  bii'  the  pri'Ceed- 
ings  in  all  of 'hem  are  exactly  the  same,  when  once  removed  before 
judgment — the  p  rties  proccd  lo  a  trial  of  the  farts.  If  the  com- 
plaint be  of  a  false  jtidgn  eiit  rendered  in  the  rourt  below,  then  a  writ 
ot  f'Ise  jii'Igment  issu.  .commanding  ihe  Sheriff  to  go  t'  the  court 
below  and  record  the  plaint,  &c.  if  in  a  court  where  he  did  not  ;  re- 
side 1  or  simply,  to  record  th''  pl/int,  if  in  a  court  where  lie  dois  pre- 
side ;  s..  that  in  fact,  tin  reeorcfart  and  accedas  ad  curiam,  is  'hi  first 
piorissii  Ihe  writ  of 'als.- j.r.ij-i-i.ent.  Tit  rfCur(/or«  is  no'  the  com- 
mem  t  ment  of  Hii)  specific  suit,  but  is  a  process  ■  oniiiion  to  several 
cases,  like  a  capias  in  other  suits,  and  is  used  indifferently  for  the  pur- 


Haywood's  reports.  ^^^ 

pose  of  brinp;inp  up  proceeding';,  either  bernre  or  after  juclpment,  and  ^P^-  '  ' " 
eithf  r  f .1  tlie  nurpMse  of  h  vint'  h  tii:.l  or.  the  fir's,  or  for  exam  nUi^  v^'>''>^ 
whether  tlur  isi  rro-  inline  jud!rm>;nt  in  ordt-i  to  its  i>moval.  The  >  ii'y 
us  ■  tlie  i£cor(/ari(i  ii:ier'ti  11  properly  so  termed,  or  ot  the  accedas  nil 
euriam  recoxlari)  s  tobringth^-  prnceriltngsiirorouit.intlii"  sim-  man-  (47'l) 
nei  us  the  (.Illy  use  nf  the  cerlio<ari  is  \i<  briij;  the  recniil  inio  cmirt  ; 
an. I  :is  tb-  cerliorari  b:is  b<  en  use  d  by  our  cnurts  lor  one  more  piirp"se 
than  it  was  u-ed  ill  111-- Ei'plish  couris,  iiv. iii^;  lo  the  peculi  m-  situa- 
tion nd  roi.striiction  ot  our  courts,  namcK,  f  rilir  purpose  of  obi  lin- 
int;  a  n  w  trial  in  the  court  above  ;  S'  d  :is  there  is  Ihe  same  re  ison 
and  necessity  for  Ciin\iii(^  tie  recordari  <>"e  step  furtht-r  lU-i,  'o  pre- 
veni  a  cieiect  of  justic,  it  m:.y  he  concluded  th;ii  the  recordari  may 
be  as  well  convered  to  thai  use  as  tlie  certiorari.  Why  s  ;^|l  ,t  be 
sai  !  we  will  cxttnd  th>'  certiorari  to  othi-r  us.  s  tlian  it  was  formerly 
employed  for,  and  not  \\\e  recordari,  when  the  reason  and  ierc--siiy 
for  so  ..xtending  il  is  equally  uvp(  nt  in  the  latter,  as  in  the  firmer 
case  ?  If  the  Justire  r.fiis-tlie  party  hisappeal,  or  if  the  p  :irt\  is  In- 
jur.--.l  and  c  ..nnot  fioii  Mireties  for  his  appeal,  or  it  he  offers  >-.ureties 
and  they  are  rejf  cled  upon  pretence  of  insuffic  ency,  or  if  tlu  Justice 
isa  p  ity  conc>  nicd,  or  ;icts  ulherM  ise  coiruDtly,  oppressively  or  in- 
juriously to  the  parly,  he  cm  have  no  redress  whatever,  niless  this 
writ  is  allowed  to.  lie  for  the  purposes  contended  for  by  5jrrf'«  counsel. 

State  V.  Curtis. 

Per  curiam — If  a  justiro  of  Peace  issue  a  warrant  fur 
a  iiiatti'i-  wiiliiii  lii.s  jiirisdictiiifi,  alilicusi'  lit"  may  have 
acted  enone'iMsly  in  tli  previous  siagcs,  tlio officer  slioiild 
execute  it ;  biii  if  it  ho  for  a  niattcp  (lot  vviihiu  lii.s  jiiris- 
diciiiiii.  Ilie  officer  ought  not  to  execute  it. 

2d.  If  the  officer  be  a  known  olScer  of  tint  district  in 
which  he  is  acting,  he  need  not  shew  liis  warratit  \\!ien 
he  makes  (lie  arrest  ;  bnt  if  he  is  an  officei  a])|ioinie(l  for 
a  specinl  |)tir|i<)se,  he  oiiglit  to  show  his  warrant  if  de- 
manded. 

Sil.  When  he  makes  tht^  arrest,  he  shniihl  briefly  in- 
form the  party  Hrrcstetl  <<i  ih''  cause — as  I  anes'  you  at 
the  suit  of  A.  or  in  behalf  <if  the  State — n'herwisc  the  ar- 
rest is  not  good.     6  Rep.  54.     9  Re.  68  b, 

4'li.  That  if  a  warrant  want  any  circumstance  essen- 
tial to  its  legal  form  or  constitiilioii,  as  if  it  want  a  seal, 
it  is  void,  and  will  not  iiistily  the  otficei-  in  making  the 
arrest,  l  Rule  577.  Foster  3\l  31J.  And  as  the  offi- 
cer did  tiot  tell  Curtis  I'or  what  he  arrested  him,  and  the 
wai-iaiil  he  had  was  ii.it  iioiler  seal,  Curtis  who  icsisteil, 
and  beat  him  for  making  the  arrest,  was  acquitted. 


541  » 

HAYWOOD^S   REPORTS. 
^^„^^,^  Hogg's  Executors  v.  Ashe. 

Unliquiilateil  damages  cannot  be  set  off,  but  when  they  are  reduced 
in  rem  judicatum,  tli(  v  maj  be.  In  an  action  brought  by  two  part, 
ners,  a  debt  due  fl-om  one  of  them,  cannot  be  set  off,  but  if  one  of 
the  partners  dies,  then  in  a  suit  by  the  survivor,  a  debt  due  from 
Viim,  may  be  set  off.  When  a  chose  in  action  is  assigned  for  X'alue 
received,  no  debt  contracted  subsequently  shall  be  allowed  even  at 
law  as  a  set  off  against  the  assignee,  especially  if  there  be  an  act  of 
the  Legislature  taking  notice  of  the  assignment  and  enabling  the  ! 
assignee  to  sue  in  his  own  name. 

Debt  upon  bonil.  Pleas,  general  issue,  notice  of  set 
off,  payment  at  and  aTter  the  day  :  and  now  upon  the  trial 
it  apppaied  on  the  part  of  the  Plaintiffs,  that  prior  to  the 
year  1778,  Robert  Hogg,  now  deceased,  and  Campbell, 
were  partners  in  trade — thai  Hogg  died, and  in  1778,  the 
Di-fendant  being  indebted  to  the  firm  of  that  company, 
ga\e  the  bond  in  question  to  Campbell,  tlie  survivor — that 
(47£)  i,,  1780,  Campbell  for  valuable  consideration,  by  deed  as- 
signed all  hi.s  share  and  interest  in  the  partnership  ef- 
fects and  debts,  to  James  Hogg,  the  principal  legatee  in 
the  will  o[ Robert,  and  some  time  after  joined  the  enemy, 
and  was  thereby  rendered  inca|)able  of  carrying  on  suits 
at  law  :  and  in  1786,  the  Legislature  passed  an  art,  tak- 
ing notice  ol  the  assignment,  and  of  CampfteWs  disability, 
and  that  it  was  injurious  to  the  creditors,  and  vested  tl>e 
right  i>f  suing  for  the  partnership  debts  in  the  executors 
of  Robert  Hogg,  making  them  also  liable  to  actions,  on 
account  of  dcbis  due  from  the  partnership — in  1789,  the 
Defendant  recovered  against  Campbell  £500  for  negroes 
of  tlie  Def(  ndaiit,  carried  away  by  Campbell  when  he 
joined  the  enemy.  The  Plaintiff  produced  the  bond,  the 
deed  ol  assignment,  and  the  act  of  ^s.seinbly,  and  there 
rested  his  case.  The  D'fentlanf  tlicn  offered  the  judgment 
recovered  by  him  against  Campbell,  as  a  set  off;  which 
was  objected  to,  by  Williams,  for  the  Plaintiff.  He  ar- 
gued, that  all  uncertain  damages,  all  unliquidated  de- 
mands which  are  sound  iit  damages  only,  aie  in  their  na- 
ture incapable  of  being  set  off — only  such  demands  for 
which  debt,  or  imlehitatus  assumpsit,  will  lie.  can  be  set 
off.  One  principal  requisite  to  a  debt  in  order  to  its 
being  set  off,  is,  that  it  should  be  mutual.  Cow.  56.— 
Iredell  172,  and  'hese  debts  are  not  mutual  ;  the  judgment 
ofii.'id  lo  be  set  off  is  obtain' d  against  Campbell,  in  jure 
propria,  for  a  transac'ion  noways  relative  to  the  partner- 
ship concerns,  and  which  arose  after  the  death  of  the 


«AY\VOOD'S    REPOUTi?. 


545 


Tjther  partner,  and  theronseqiieiit  dissolution  of  the  part-  ^P""'  '  '* 
nerstiip  ;  whereas  the  debt  sued  foe,  is  a  debt  couti'acted 
with  tlic  partners  as  joint  nierchaiits.    Mutuality  of  debts 
is  so  absolutely  essential  to  a  set  olf,  that  no  instancecan 
be  jirodiiced,  of  a  set  oflF  having  been  allowed,  where  the 
debt  demanded  is  not  due  to  the  same  persons  precisely 
as  the  debt  to  be  set  off  is  due  from.     Even  a  debt  due 
to  a  man  in  right  of  his  wife,  cannot  be  set  off  in  an  action 
against  him  for  his  own  debt,  Bull.l79,  because  not  pre- 
cisely mutual ;  the  debt  sued  for  being  due  from  himself 
elone,  and  that  offered  to  be  set  off  to  him  and  another — 
the  reason  of  (he  rule  is,  lest  the  interests  of  third    per- 
sons might  be  affected.     If  the  husband  in  the  case  cited, 
is  compelled  to  sue  for  the  debt  due  in  right  of  his  wife, 
that  debt  would  survive  to  her  in  case  of  his  death  before 
the  recovery  ;  that  reason  extends  (o  the  case  befin-e  us. 
Were  this  judgment  allowed  to  he  set  off,  the  interest  of 
the  representatives  of  the  deceased  partner  who  remained    (47S) 
here,  would  be  subjected  to  pay  a  judgment  recovered 
against  CainpbcU,  for  a  lort  of  his  own.     If  one  man  re- 
ceive rents  for  another  after  his  death,  by  appointment  in 
I  his  lifetime,  and  then  be  sued  by  tlie  executors,   he   can- 
not set  off  a  debt   due  from  the  deceased,  because  tlie  de- 
ceased never  had  any  cause  of  action  against  him.    Bull. 
180.     Si)  lierc,  th(^  Defendant  never   had   any   cause  of 
actitni  against  the  Plaintiffs,  and  ought  not  to  be  allowed 
to  set  off  the  judgment  against  them.     It  is  true  indeed, 
that  by  the  death  <if  Rohert  Hogg,  the  remedy  to  recover 
the  partnei  ship  debts  survived  to  Campbell  ;  but  it  was  the 
remedy  only  tiiat  did  so — the  interest  of  the  deceased  did 
not.     It  is  a  i-nle  in  the  law  merchant,  thatjws  accrescendi 
inter  mercatores  locum  non  liahet.     4  Term  123.     5  Bac. 
M.  580,  589.     That  interest  which  Robert  Hogg  had  sur- 
vived up(m  his  death  to  his  executors,  though   the  right 
to  recover  lliem,  and  get  thcni  in   from   the  partneisliip 
debtors,  survived  to  Campbell,  who  could    not,   by   any 
transactions  of  his,  onerate  the  shine  of  his  deceased  part- 
ner with  any  other  incumbrances  tlian  it  was  sulij  -ct  to 
at  the  time  of  his  death.     As  to  the  share  of  Campbell, 
though  that  might  have  been  liable  had   no   assignment 
been  made,  yet  seeing  his  share  was  assigned,  and  that 
assignment  coiifirinrd  by  act  of  Assembly  before  the  judg- 
ment against  him,  it  passed  to  the  assignee  i^being  inv  a 
valuable  consideration)  not  subject  in  his  hands,   to  this 
demand ;  and  this  set  off  is  nut  proper  to  be  allowed. 


546 


HAYWOOD  iS  llEPOKTS. 


Apr.  1797.  ni^^ig  f„p  Defcutla.it— I  shnll  not  ilciiy  tlic  law  as  laid 
^"^'^'"^' diivMi  l)v  Mr.  fViUiams.  that  uiiliquiilatcd  <l.iin;ii!;  •-*  can- 
iii.t  be  sel  i.ff;  but  my  .insiv.r  to  tbal  pari  of  bis  argu- 
meiit  is,  Uiat  the  dciit  we  offir  tn  set  otT,  t-  nut  uiiliqiiida- 
teii,  but  r((lii(T<l  to  a  rettaiiity  by  the  Jiidi^ineiit.  It  ia 
needless  to  coiisultT  pariinilafly,  the  rases  adduced  by 
Mr.  fFiUiams  in  suppoit  of  this  iMtsitioii.  tliey  aee  all  of 
them  Cases  of  uiicei-tain  deniarids,  and  do  not  apply  to  the 
present  case.  If  it  be  saiil.  tliat  bef,.i-e  the  .jiid.si;in"iit  the 
detnaiid  was  for  <lainat;es  uiiCPitain  ;  the  answer  is.  what- 
ever may  b.ne  bi>eii  the  origin  of  a  jiKlgnient,  whether 
trespass  or  any  other  injmy  to  be  comiiensaicd  in  dama- 
ges, wlien  the  damages  are  once  aHcertained  by  the  ver- 
dict of  a  jmy,  ami  a  jnd^ment  i^iven  foe  tlieiu,  tbey  be- 
come ftoin  I  henceforward  a  deiil,  as  much  as  if  a  bond 
had  been  given  for  them  ;  and  may  be  sued  for  and  reco- 
vered in  ati  action  of  debt.  Espin.  Hoiitel  v.  Strickland. 
And  wli(ie\er  the  sum  olV.-red  to  he  set  ofT.  is  pioperly 
I'ccoveiable  in  an  action  of  debt,  it  may  be  set  olF:  tvery 
set  (ilf  being  in  lieu  id'  an  a<  lioii.  As  In  the  imitiwiity  of 
(474)  debts  in  order  to  a  sel  oft',  ihat  also  is  neci-ssary  :  but  then 
a.s  we  are  in  a  court  ol  law,  th-  legal  interest  is  only  to 
be  coiisidi  led.  The  assignment  at  inist,  only  \csts  an 
equitable  interest  in  the  assignee  :  and  th  it  is  sucli  an  otie 
as  ijiis  court  will  not  take  notice  of.  Tlie  interest  as- 
signed in  the  hanils  of  the  assigoce,  is  legally  subject  to 
all  the  incnmbranci  s.  it  was  siibjert  to,  or  would  have 
been  subject  to  in  the  hands  of  the  assignor,  had  the  as- 
signment not  been  made.  The  sjiaic  of  «lebts  assigned. 
Is  still  le.;;ally  considei-ed  as  ilehis  diie.lo  the  assignoi-. — 
H:id  Campbell  after  tlie  assignment,  commiiied  liigli  trea- 
son, the  deliis  assigned  were  sul)ject  to  forfeiture.  In 
short,  the  assignment  as  to  third  (tersons.  operaies  iio- 
tlii'ig — tlie  law  will  not  recognize  it.  Not  withs'anding 
the  assigiHiient,  ^uits  must  still  be  brongiit  in  th<'  name 
of  Campbell ;  the  l.iw  deeming  it  a  mere  niilliiy.  The  as- 
si.i;nini'iii  therefore,  so  far  as  regards  the  le!;al  interest 
of  the  parties,  leaves  them  exactly  in  the  same  situation 
they  were  in  befioe  the  assujumeni  :  and  t'len  a  jiidg- 
inent  lecoxerd  against  Campbell,  may  be  set  otf  against 
a  tiebt  o  oe  reco\rrid  by  iiimself  ;  and  laying  aside  the 
act  ot  Assemiily,  that  is  the  present  case.  That  act  lor 
the  fofiiie  iiiite  if  justice,  has  vested  the  righi  of  suing  in 
the  executor!)  of  the  deceased  partner ;  but  stiU  the  debts 


Haywood's  uepouts.  547 

when  received,  do  in  cuMtpiiiplation  oIIhw  belong  to  Camp-  Apr.  179?". 
bell.  ■  The  exccuioi's  are  Hit-  represeiiiati*"-'*  .■>!' tlic  iiait-  -^"■''^^^ 
nersliip  by  Legislaiixe  ci'iMtioii,  and  in  the  place  ol' the 
sur\i\  idj;  p.iriiiif  HCliiis  for  the  pai-tneisbii).  nnd  arc  stib- 
jert  to  all  suih  actions  as  the  jierson  in  whose  place  they 
stood  was  ;  'nd  of  course  to  an  action  for  this  delii,  and 
consi'fjueniiy  to  the  set  offotfereil ;  which  is  no  more  'dan 
a  cross  action  by  the  Defendant  agiinsi  the  PlaiotifT. — 
In  this  \if\x  of  the  case,  both  the  inteiesi  of  Campbell, 
and  Campbell  himself,  by  his  repc  -.>  iiiatives  the  execu- 
tors, are  no>^  before  iheconi-t.  I'liis  is>.'ibsta'  tii«ll\  and 
pi-ojieriy  to  be  consideici  a>  iln-  ac'ion  tA'  Campbell,  lo  le- 
cover  a  debt  llie  i^w  deems  due  and  |iay;ible  to  liifn-<  if, 
both  now  .ind  \\heo  recovered;  and  tlierefoi'e,  the  debt 
sued  for,  and  tluit  oflTered  to  b(>  sei  off,  are  rrci|ni>CHl  and 
mutual  debts  within  the  meaning  of  our  act  of  .\ssentUly, 
and  are  perfectly  (  jear  of  the  objection  endeavored  to  be 
raised  by  Mr.  Williams  for  want  of  mutuality.  Ii  is  not 
so  nniversail}  true  as  is  stated  by  Mr.  IVilliums,  (hat  tjie 
debt  to  be  set  off,  ninsl  be  a  d<'bt  recovei  ai>le  by  the  De- 
fendant again.-i  the  Plaintiff.  Esp.  1AQ.  1  Term  112, 
115.  t  mucli  doubi  whether  ihcuse  cited  from  BuUer 
179,  woiihl  be  so  adjudged  at  I  his  day.  It  certainly  (ould  /-.^f.^ 
not  have  been  so  adjudijed  to  save  the  right  of  survivor-  ^  '^^ 
ship  to  the  wife.  5  Tenn49J,  [troves  tint  a  debt  due 
from  a  surviving  partner,  may  be  set  off  in  .in  action 
brought  by  him  tor  a  debt  due  to  the  partnership — there 
Was  not  such  precise  nmtiiality  as  Mr.  'filliams  iiiotends 
foi — that  was  the  veiy  same  case  n>  this  no-  befoe  the 
court.  Ill  the  present  case,  the  whole  partnersiiip  inter- 
est is  yet  in  Campbell  the  survivoi,  and  the  ^nii  for  his 
benefit  ;  at  the  same  time  that  the  debi  sought  to  be  set 
off.  is  reduced  toceriainiy  by  a  judgment  against  !li:it  »e- 
ry  surviving  partner.  The  assignment  operaie^  iioi'<iiig, 
the  act  of  Assembly  appoints  a  substitute  for  Campbell, 
with  lespect  to  the  renndy.  If  these  two  lattei  ( iii  um- 
stauces  create  no  difference,  as  I  think  tliey  do  not,  the 
present  case  is  precisely  similar  to  that  last  cited,  and 
ought  to  be  g.iverned  liy  it;  for  as  to  the  irigin  f  ^he 
dt'ii,  that  is  of  no  consequence  whatever.  3  Terni  Jiep- 
507.     The  law  only  requites  mutuality  of  action,  a  il'.er-  ^ 

tatny  as  to  the  amount  of  the  debt  to  be  set  off.      Il   lids 
sei  off  is  not  allow;, ble,  a  general  inconvenience  aiiI  fol- 
low, for  then  a  partner  may  cuntract  debts,  commit  tres- 
69 


548 


HAYWOOD'S    KEPORTS. 


Apr.  1797  pas'),  &r.  and  licfore  a  rcrovPi-y  can  bo  Iiad  ai^ainst  Iiiii}) 
'"''^''"^^  a.s^iL,'^  his  sli.iri*  to  (lie  legatees  c>i' exoruiors  of  his  decea- 
snl  purdier,  and  put  it  out  fif  the  power  of  iiis  creditdrs 
Id   "lilairi  a  farthing. 

Williams  in  n  plv.  3  Bac.  M.  589.  pi-oves  that  the 
right  .if  Hii;  vivorsliip  does  nut  tiiki-  pl.ice  amongst  inei-- 
chanis  ;  and  from  ilience  it  follows,  tliat  the  share  it{  Ro- 
bert Hogg  < '.iild  not  be  ;ifrected  hy  thi'- judgment.  And 
then  -iimIj  it  follnvNs,  that  it  cannot  l)e  affected  by  set- 
ting'fftliisJiMlgment  against  its  del)ts.  If  the  srt  offcon- 
tend'd  lor  br  aUo^ed,  ii  will  (ft-feaf  liis  interest  or  sliare 
of  ilii'^  d  bt  ;  and  by  llir  same  i«asoiiing,  a  surviving 
piirtiier  by  liis  misconduct,  may  destroy  the  whole  share 
of  Ins  deci-ased  partners.  This  is  incompatible  with  the 
rule,  and  cannot  lie  law  :  a  partner  by  contracting  pri- 
vate debts,  caniM't  affect  the  whole  partiiershi|).  Whcri 
tli' re  is  a  judgment  against  him,  and  execution  iss'iies. 
the  Slieriff  can  only  sell  his  share,  so  as  to  make  the  \  en- 
dee  a  tenant  in  common  with  the  other  partner.  Salk. 
392.  If  the  wh'de  cannot  be  affecleil  by  an  action,  nei- 
ther can  it  by  a  set  off;  and  consecpicn'ly  a  private  debt 
as  this  is,  cannot  he  sit  off  against  a  partnership  <hbt, 
wh'  n  you  cannot  take  from  an>  pari  of  it  by  asetoffwitji- 
oui  :iff(  (ting  the  iniirest  of  the  other  partner.  He  cited 
4  Term  123.  As  to  Caw/(6e/i's  share,  admitting  it  t«  have 
been  liablr  to  this  s<'t  off  had  no  assignment  been  maile, 
('476")  J'"'  ****  ''  ^'''"^''y  W'"*  made  and  confinned  before  the  re- 
cowry  of  tins  judguii-nt,  it  is  in  tlie  sami^  situation  as  if 
it  h.td  bi  en  the  transfer  of  an  interest  legally  assignalile  ; 
such  as  a  note  (d'haiid  or  Ihr  like,  which  clearly  would 
be  txeinpt  from  Hiiy  ifier  drbt  due  from  the  assignor  i 
an<l  consequently  no  part  of  these  effects  and  debts,  nei- 
th<M-  the  share -of  Campbell,  nor  of  the  di'ccased,  can  be  a- 
ny    wa^s  liable  to  this  demand  of  the  Defendants. 

Judge  Haywood — in  1778,  the  bond  was  executed  up- 
on \viii<h  this  action  is  foundid  ;  in  1781),  the  surviving 
partni  r  assigned  aH  his  intenst  in  the  |iiirtnerslijp  effects  ; 
in  1786.  till'  a(  t  (d'  Assembly  passed,  and  in  1789,  the  l)e- 
fpnil^nt  recovei-ed  tins  judgment  tthich  lie  now  offei-s  to 
set  off.  Tlie  best  \\;\y  of  a.scerlaining  whither  a  deiuanil 
may  be  set  off,  is  to  consider  in  the  first  place  whetlier  it 
is  sui  h  a  demand  in  itself,  and  of  its  own  natuie,  as  may 
be  si't  iiff — srcondlj,  agaio'.t  whom  it  iniy  i>e  .si  t  off.  A  ' 
demand  fur  unliquidated  damages,  caiinoi  be  set  off:  the 


Haywood's  repokts.  549 

i  Logislafure  never  rduld  iri'md  lo  iiitrndiire  so  mucli  ron-  Apr.  \J97. 
'  fusiiiM,  iis  tliat  of  tr_>iiij5  actiiiiiK  nftioxer,  tfe^p  s-'  "r  tlie  ■■^^"'■^^^ 
'  like,  hj  waj  ot  se'  off  in  ;tii  action  of  il<-bt.  H  iil  'ln'  De- 
I  feiidnrit's  (Irinan"!  beeo  Cur  (Liiiiiijsjes,  or  aii^-  iiniiqiii'Uted 
!  siiiii.  I  should  lM«e  been  vei'>  <  learlv  'f  oitinioii  it  lould 
not  be  set  off;  but  ir  is  not  f  r  oolirji'id  ii.-d  daniages — it 
is  for  a  sum  certain,  i-cdiiced  in  rem  jndicatam,  bv  the 
jii<i,i>;metil.  It  is  tlurefoie  in  itselfatid  ofitsovxn  Mature, 
cap'ihle  of  bein.a;  set  off,  wi  a'cvei-  m.iy  have  been  iu  ori- 
gin ;  an<I  Hlthouu;b  before  'be  judgement  if  iiii^lit  have 
sounded  only  in  r-iiiiases.  The  tiue  question  is,  can  d-  bt 
or  indebitatus  assumpsit,  he  brou.a;bt  iipoii  ibe  dcuia'd  of- 
fered lo  b;-  set  off.  It'  ii  may,  then  the  sum  is  snch  an  one 
as  maj  be  set  off.  Here,  di  bt  wonld  lo-  ii|ion  llie  jndja;- 
mi'iil,  and  therefore  it  is  cajralile  in  itself  of  bi'inj^  se:  off. 
Willi  I'egard  to  the  pariy  aj^.iinsi  .\hooi  itniiij  bf  si  t  off, 
I  take  tiie  disiinclion  to  he  this — where  ilie  debt  off"i-ed 
to  be  set  off,  is  recoverable  and  ii.iyalile  out  of  the  same 
fund,  that  the  debt  to  !>•  recovered  in  the  action  go  s  to 
increase,  it  may  be  set  off.  Where  two  Plainuffs  sue, 
and  the  sucn  offered  to  be  set  off  can  be  recovered  of  one 
of  them  only,  it  cannot  be  set  off;  or  where  one  sues, 
and  the  hum  offi  red  to  be  !>et  off  is  due  from  that  one  and 
another,  it  cannot  be  set  off;  because  in  either  case, 
the  two  actions  cannot  he  reduced  to  one  by  a  sel  off, 
without  doin.s;  an  injury  to  a  third  peison,  by  snhjficiing 
liim  to  the  effects  of  an  action,  to  which  Infore  the  act  of 
setoffs,  he  Would  not  have  been  subject.  The  act  did 
not  mean  to  extend  the  action  of  the  Defendant  to  a  per- 
son not  liable  lo  it  without  the  act ;  hutonly  to  give  him 
the  effect  of  an  action  ag.iinst  the  Plaintiff,  to  which  the  C'^'''^^ 
Plaintiff  was  liable  without  the  act,  but  not  subject  to  by 
way  ol  set  off.  The  law  is  so  with  respect  to  a  partner- 
slii|i  dealing  ;  the  Defendant  caninit,  by  execution  upon 
^judgment  against  one  partner  in  his  private  capacity, 
seize  and  sell  the  whole  partnership  effects  :  he  t  an  only 
sell  the  share  of  the  partner  against  whom  he  his  judg- 
ment, and  the  vendee  bet omes  tenant  in  common  with 
the  other.  If  he  cannot  affect  the  o  Iter's  .share  by  judg- 
ment and  execuliiMi,  surely  he  cannt)i  do  it  liy  set  off; 
which  is  in  lieu  of  an  action.  The  law  is  so  stated  in 
Salk.  and  several  othei-  books,  and  this  is  the  meaning 
of  'lie  case  died  by  Jlr.  Hilliams,  liom  Term  He.  but  ail 
this  gors  upon  llie  supposition,  Ui.it  the  two  partners  arc 
alive,  aud  both  sue.     The  case  is  widely  different  where 


650  Haywood's  heports. 

ApM797.  one  (lies,  for  then  the  survivor  has  all  ilipparJnersliipcf- 
^•^^''^^^  feci'-  iujnre  propria.  He  m;iy  release  the  dehts,  jsfive 
awaj  th'  effet  t^,  sill  hikI  dispose  of  tli<m  fi>  whom  he 
please«  ;  he  alone  ran  take  (lossession  of  all  the  offerts. 
The  executors  "f  tite  deceased  cannot  object  to  an>  dis- 
position he  may  tMnk  proper  to  make  ;  they  cannot  lay 
claim  to  an\  particular  article  :  they  cannot  sue  as  ven- 
dee or  donee,  and  recover  the  effects.  WIm'u  an  action 
is  hroiierht  for  the  partnership  dehis  and  effects,  he  sues 
injure  propria,  namiii.s;  himself  bj  his  pi-nper  name  with- 
out the  addition  of  survixint;  partner,  and  s'ates  his  rislit 
in  the  declai-ation.  The  maxim  cted  b_\  Mr.  Williams, 
is  a  true  one;  hut  it  is  not  lo  be  understood  as  he  under- 
stands it ;  it  means,  that  the  interest  and  pruperty  of  the 
deceased  does  not  cease  as  to  him,  and  become  vrsied  in 
the  survivor,  as  in  the  case  of  oilier  joint  tenants  ;  hut 
that  there  survives  to  'h<'  repiescntativesof  the  deceased, 
a  rigfit  to  demand  the  dereas'-d's  sirarc  of  the  clear  bal- 
ance that  shall  remain,  after  the  debts  due  to  and  from  the 
partnership  shall  be  collected  and  paid  by  the  survivor. 
Tlieir  claim  is  to  an  account,  and  for  the  balance  in 
money  ;  not  to  any  specific  articles  or  debt**  of  the  part- 
nership. The  survivor  is  their  debtor,  and  tliry  his  cre- 
ditors to  th"'  amount  of  the  balance  ;  therefore  when  he 
sues  a  partnershi|i  debtor,  he  sues  in  jure  propria;  and 
thai  debtor,  if  he  has  a  demand  asainst  him  in  his  private 
right,  may  set  it  off:  and  that  is  the  reason  of  the  rase 
in  5  Term  493.  If  Campbell  were  the  Plaintiff  her*-,  and 
the  assi$;ninent  had  not  been  made,  this  debt  might  he 
setoff.  Then  what  effect  has  the  assignment  ?  In  this 
court,  b}  the  I'ules  of  the  old  common  law,  it  has  no  ef- 
f478)  f'^'"'-  ^  chose  in  action  catmot  be  assigned,  it  vests  no 
legal  interest  in  tlie  assignee  ;  hut  then  the  act  of  Assem- 
bly comes  in  and  h-galiz's  thr  assignment,  and  gives  it 
the  t'ffrct  of  legallj  vesting  the  v\h(de  interest  the  assign- 
or had  in  the  assignee  ;  and  that  a.ssignment  having  been 
prior  lo  the  Defendant's  recovery,  exempts  the  effects  in 
the  assignee'-  hands  from  the  after  incumbrances  of  the 
assignor.  From  the  time  of  this  act,  CumpbeH  had  nei- 
ther an  interest  in,  nor  a  remedj  for  this  di-bt — he  could 
not  in>vv  sue  for  it  were  he  in  the  country,  and  if  his  in- 
terest has  so  completely  departed  from  him.  that  he  has 
no  (ontrol  over  the  debt,  nor  can  institute  nor  release 
at)}  suit  tor  it,  then  he  and  his  property  is  lial>le  lo  the 
Defendant's  action  uponthejudgment,  and  the  Defendant 


havwdod's  reports.  551 

is  liable  for  the  bond  to  iheartion  ..foihir  ppfsons,  wliose  ^P''- ^''^''* 
recoverj   will    solo  iiicrcitsf  the  fund    of  tin'   n»Hii>;nre,  •^'^''^'*^ 
wliirli  is  imt  li;iblc  ic  pav  tbr  debt  due  to  llic  Delendaiit  ; 
and  ciiiisc  qiK'Mil^,  Ibf    Plainliff's    ate   not   such  peisnns 
against  uh'iin  the  Dcfeuilanl's  dt-iuand  can  be  set  off. 

Stonk,  Justice — I  am  nf  the  same  opinion  with  Jinlge 
Haywood  as  to  the  jirincipal  point,  lliat  ihis  set  nff  "iigbt 
not  to  be  allowed. 

Vavie  I'oribf  Defendant — The  opinion  of  the  roiiit  pro- 
ceeds entirely  upoit  the  eftVri  of  (he  act  nf  As>eiiibly.  I 
did  not  furesee  tliis,  ami  hope  !  sIikII  be  itidnlged  willi  an- 
olhet-  argument.  I  can  shew  ^er^  ( learly  that  t be  act 
has  not  the  meaning  giveii  to  it  by  the  coiiit. 

Per  curium — l-et  the  case  be  spt-ciallj  stated — We  will 
hear  anoibef  argtimi'iit.  It  was  so  stated,  and  afiei-waids 
at  anoiber  day  in  the  (eiin,  the  cause  was  again  argued. 

Davie,  for  the  Defendant — It  was  argued  the  oiher  ilay 
by  the  Plaintiff's  counsel,  that  where  purttieis  sue,  ,i  debt 
due  from  one  of  them  only,  caiino!  be  set  nfT,  That  is  not 
denied,  but  it  will  not  from  theirce  follow  that  where  the 
surviving  iiaitncr  sues,  a  debt  due  fiom  liiin  may  not  be 
sft  off.  The  law  is,  that  it  in;!y.  Thi-  court  linow^s  no 
right  but  his — be  is  answerabV  to  the  executors  of  the  <le- 
ceased  (or  the  debts  due  to  the  paftnership — it  is  perfect- 
ly immaterial  to  them  bow  he  disposes  of  these  ilebts — 
wheiliei'by  discharsitig  bis  own  private  debts  or  other- 
wise. In  case  of  a  debt  iluc  from  him  in  liis  ptuafe  ca- 
paciiy,  if  be  is  sued  for  it,  and  execution  issues,  it  will 
take  bold  of  all  the  partneislii|i  effects,  and  tliey  may  be 
all  sold  to  satisfy  it.  Tlicre  is  no  innie'y  of  bis.  distinct 
from  that  of  the  dead  partners  ;  there  is  no  longer  any 
pai-inership  existint;.  3  Terjn 493.  is  in  point.  Tbesur- 
viving  partner  may  join  a  pat  tnership  acion,  Hnd  one  in 
Ills  own  right,  in  lh<-  same  writ  ;  which  pioves  bo(h  ac- 
tions to  be  in  jure  propria,  and  therefure  the  law  will  al-     C47'9) 

low  a  debt  due  from  bim  to  be  set  off  in  such  action 

Tlie  liability  of  the  survivor  to  the  executors  of  tlie  de- 
ceased, is  10)  argument  against  it ;  neitliw  is  it  any  hard- 
I  ship  'hat  the  partneisblp  efPcts  should  be  liable  to  the 
debts  of  ptivate  creditors,  to  the  prejudice  of  partnership 
creditors,  who  it  issatd  (rust  upon  the  credit  of  no  parti- 
cular liind,  but  from  his  persoiial  credit  generally.  Ac- 
coiding  lo  Mr.  Williams'  own  argument,  a  privaie  cre- 
ditor may  sell  a  share  of  one  partner,  to  satisfy  his  pri- 


552  HAYWOOJj's    UKPORTS. 

A;m'  179?".  yjjfp  «lrbt ;  llicn  why  not  tlii"  wlidlf  partiiPi-sliip  pffi-rts, 
^'^^^'"^^  wlipri  (oiiceiiiiitMl  ill  the  liHiids  iif  the  suivivor.  1'  i»  no 
Itiil'dsliij).  (V)f  a  ilchi  (lite  (o  the  pHrtiirisl'i|i  may  In-  sot  off 
by  tho  suivivnr,  ap;aiii>i  a  ilrht  din  iVnni  liiiiisrif.  I  think 
it  ('ai<iii>t  he  dniiliti'il,  liut  iliiit  the  siir\i\  ino;  paitiier  lioldti 
injure  proprhu  hikI  that  an  rxi'intiiui  foi  a  di'bt  due  fi'om 
biinseir,  iiimv  be  b'vicil  uti  the  whub-  |)'U'iiiershi|i  efri-(  is  to 
si:ti-f>  it.  As  t«>  the  act  nl' As-cinlily.  it  is  in  dei'og^itioii 
of  thi  riiiiinioii  lav\,  iii:i(h-  I'm  a  sperial  (iiirpuse,  tOHnswer 
tlie  ('OMM;t)ieii('e  lit' pai'tiriihir  iiidiv  iiluals,  and  iiui^lit  to 
be  cniisli'iied  -irictlv  arcurdiHej  lo  its  lileril  meanin!?.— 
5  Bacon's  Mridgemenl  650.  10  Jlodern  182.  [Uerc 
he  read  tlie  ait  of  1786.  c/t.  56  ]  H\  ibis  act  ihoss 
jXTSdiis  whii  were  the  execuiurs  '•{Robert  Hogg-  ■<ve  cin- 
pi.weied  In  sue,  iiainin.g;  tiieinsi-hes  exicinois  •■{  Hogg  ; 
bill  tbey  do  mil  sue  .is  executors — iliey  sir>  put  in  the  pliice 
of  tlie  sui\i\iiig  jiartner,  they  lepreseiH  bim,  they  are  en- 
abled to  recovei'  for  the  |iur|iiise  of  payint;  ilie  partner- 
sbiji  debts,  not  fm-  ihe  piiipnse  nf  (la^ing  uxor  to  the  as- 
siijnee.  They  are,  loi  ought  that  is  containyl  to  the  con- 
trary In  Ibis  act,  to  pay  the  hai.ince  to  such  persons  as 
by  law  are  eniitled  lorereixe  it,  and  ibai  is  the  Mirvitiiig 
partner — they  can  onlv  recnver  in  cases  wbere  hc  might, 
were  be  not  disabled — and  are  suhject  as  be  winild  be, 
were  till   suit  in  bis  name. 

Wi//iu7iis,  in  r'ejily — The  reason  of  allowing  a  set  off 
in  ibe  case  nf  an  aciinn  against  ibe  sur\iviiig  pstrtner  is, 
because  he  may  recover  the  partnership  debt,  and  pay 
his  (iwii  private  debl  with  ii  ;  but  if  be  sues,  the  court 
will  not  compel  him  to  admit  the  set  off  of  a  debt  due 
I'roin  biinself  ill  iiis  prix  ate  capacity.  It  is  at  bis  elei-tioii 
when  Delendaiit.  to  set  off  or  not.  Ue  may  dis|iiise  of 
tb^  ])artiieisliip  debts  in  discharge  of  bis  own  piivate 
debts  if  be  Ibinks  proper,  tii4  ibe  law  will  not  I'oice  bim 
to  do  so.  It  will  not  cnmpei  bim  to  do  injustice  by  lireak- 
(480)  ifS  ''"'  trust  reposed  in  bun  liy  his  partner  at  tlie  time 
of  coininencing  t'le  p;irtnerslii|)..  He  ibeii  cited  2  Vern. 
293,  706..  P.  if'U.  182.  4  Term  123.  loshew  tliat  incases 
of  bankiuptiy.  ihe  ]iaitiii  rslii|i  tiebis  shall  be  paid  out  of 
tbe  pai  luersbip  olfecis  befor'  the  prix  ate  debts  of  the 
partners.  I'artneiship  efleets  in  the  bands  of  a  survi\ing 
partner,  cannot  be  taken  to  satisfy  .".  (irirale  debt  by  ex- 
ccuiioii.  A  Court  of  Erpiity  would  protect  tlie  share  of 
the  (leteased  pai'iiipr,  niion  p^  oprr  circumstances  laid  be- 
fore it.     Tlic  Deieiidaiil  in  the  present  case,  had   riolice 


IIAYWOOO'S    KEPOUTS.  553 

ef  tlic  assisnmont  l»y  Campbell,  and  a  iinympiit  made  hy  ^P""- 1''^''' 
him  I'l  Camjibell  .iftcrwrti-ii-i,  would  lot  liiivcbe'-n  iillowi-d.  ••^'^^'^*^ 
The  ad,  of  As-^i'inl»ly  recognizes  rlie  assi^i'im-nt,  aiid  im- 
parls to  it  a  Icijal    etiVct  und    opi'i-atio'ii.      With    lOHpect  *■ 
ti)    rfssiiiiiiniMit-i  ill  !;('ii'  ral,  they  are    protectable    in  a 
Court  ot"  Efjiiily.' and  no  p.tymcril  m.nlr  .il'ter  imtice  of.tll 
aHsij^iiiiic-iil  t'lir   laluablr  cun'^ideralioM,  sli;:!!   def-af    tbe 
intens!  of  the  assijrnee.   1  Sulk.  79      1  Jltk.  294.     2   Bl. 
Re    1269.  lisr.   1  Term  lie.  26-  4  term  340. 

Curia  (ulvisari — A  lew  d  lys  af'lerw.irds,  Stone  deli- 
vereil  tin-  liii^il  npinioii  of  tliC  court,  that  the  s.-t  'iff  was 
not  allowable.  hikI  added  he  would  fijivc  his  reasons. — 
The  iiiea,  hr  saiil,  of  the  nnasHi.s!;n,ibi!ity  ol  c/wses  in.  ac- 
tion, is  iiiiich  alti-red  now  IVorii  wiial  ii  was  fonnci'iy. — 
Comlsof  Eqnilj  fo-  a  lona;  time  have  protected  such  as- 
sii!;nmi'hl'*  \\iitii  lor  valiial)le  coiisideraiion.  Coiirts  of 
Lan  also  have  lately  come  itiio  'hr  resoliiijoii  td"  taking 
notice  of  them  ;  and  very  pioprly:  for  why  should  a 
Court  of  Law  rrl'use  to  do  vvuat  is  really. just  antl  proper 
to  hr  done,  and  what  is  usually  and  cvrry  da)  d  iiie  In  a 
Court  of  Equity  ?  Many  of  thi-  ancient  common  law  rules 
have  been  chaiij^ed,  uiriely  bcc  ruse  they  would  not  do 
that  which  Coiir;s  ot'Ec|nity  would.  Arcnrdinsly  Courts 
of  Law  now  virw  the  assignor  of  a  chose  iii  action  for  a 
Valuable  consideration,  as  a  trustre  for  .\v  assij;;nrr;  and 
the  thins;  assii:;ned  is  realiy  and  substiuiiially  hrlon^iug 
to  t  :e  assiy^nee.  One  (  onsrqurnce  resulting  frotn  this  is, 
that  a  c/*OA'c  ill  «cfio?t  actiialiy  assigned  for  value  is  not 
liable  to  the  allcr  charges  of  the  assignor,  espec  lally 
where  the  third  person  li.ts  notice  nf  ihi- assignment,  and 
of  course  not  to  a  se-ioirid'  ■  sum  suhseqin-ntly  bccomi'ig 
due  from  the  assignor.  My  opinion  isfnunded  not  only 
oil  the  reason  and  pi-opru'iy  of  the  thing,  but  also  iipiin 
a  case  in  1  Term  Re.  619,  and  the  cusrs  there  c\lti\, 
wiiere  .he  tloctrii  e  !  .nn  irealiiig  of,  is  fully  estalilisiieil. 
The  law  of  ihese  cases  has  been  recot^niz't!  by  si'veral 
decisions  in  our  own  courts — l>y  thitol  Smil/idinl  Poivell, 
decitled  at  H.ilif. >(,  on  the  list  ciicuii  ;  and  by  ihal  of  (481") 
,)IcUanicl  ami  Tate,  decided  at  Morgaiiton,  some  years 
ago. 

It  is  said  h'lwevcr,  that  these  cases  proceed  d  upoti 
fraud  ;  but  is  not  every  case  of  a  fair  assignm'  ni  f  n-  va- 
lue, Mih'oipM'd  to  he  defea'rd  bv  tho  assignor  to  ih  p.e- 
judicB  of  the  assigaee,  a  case  of  fraud  ?     i  tnink  tiii»  mo- 


554  Haywood's  uepoiits. 

Apr.i797.  Jerri  docti'ine  ies|)e(ti'ig  clioses  in  action  assi^nei],  more 
^-''"^'''^^  |ieriiliaily  iinipcM-  lii'iv.  bi-raus'  udf  Coui-ts  of  L.iw  and 
Coiiiis  >if  Equity  ai-e  iiniii'd,  and  boili  Jnt'isdicti'iiis  to  be 
exficised  hy  tlie  same  .liili^jes.  It  scfins  vi-ry  idle  t'>  j^ivo 
a  ,jndi;ini'ni  ai  Law,,  ini-irly  lor  tlie  pni'irose  nf  seitinj;  it 
aside  or  currertiti;;  ii  in  a  Coni't  of  Eqniiy.  It  i-^  more 
pio|)er,  because  inucb  less  expeusive  and  dilatory,  for  tlic 
Court  of  Law  at  once  to  make  the  same  derisioo  ihat  is 
attain,ibl<'  by  an  application  'o  tbe  Conit  of  Equity.  I 
am  also  of  opinion,  ilie  art  of  Assembly  meiint  to  give  pf- 
ficary  lo  the  ii-^sigtiinent.  It  has  rertaiiily  gi.en  tlie  riglit 
of  suiiija;  t<»  tin-  piesent  Plaintiffs  ;  and  if  tliey  are  only 
Plaintiffs  in  form,  as  llnre  is  no  inst^nne  of  pleading  a 
set  off  aifaiust  a  person  who  is  not  Plaintiff  on  rei  m-d,  I 
think  thai  circumstance  alone,  independent  of  any  rousi* 
deraiion  ri-spectiitg  Hie  interest,  sufficient  to  oust  the  De- 
fendant of  the  set  off  lie  propo.ies  t'>  make.  As  to  the  doc- 
trine of  sei  offs,  wit'i  respeci  to  th' quality  of  the  demands 
capable  in  (In  mselvcs  of  being  -et  off,  and  the  pei'soos  a- 
gaiMSt  whom  ihey  may  be  s  t  off,  I  am  of  opinion,  the  law 
wa-  accurately  staled  the  other  d<iy  from  the  henrh. 

The  set  off  vvrts  disallowed.  Then  fVilHams  movrd  for 
anew  trial,  tlie  jury  having  not  allowed  interest  enough, 
and  biiiig  not  op|>osed,  it  w.is  (granted. 

NoTB.  ri(feS.  C.  Con  Refi.  1.  Woffor(l\.  Greenlee,  Ibid.  79.  Ro. 
berts  V.  Jones,  I  Murph.  353.  ffoble  y.  Howard's  Ex'rs.  2  Hay.  li. — 
Smith  V.  Fowell,  ante  452. 


FAYETTEVILLE,  APRIL  TERM,  179". 
Anonymous. 

Ter  Curiam. — The  Def-ndant,  the  adininistratof,  has 
not  distiiigiiished  in  the  in»entoi'y,  the  good  from  the 
bad  oebis.  We  mu-.t  take  if  they  are  ail  i;ood«lebis,  tint 
you  may  di-.ihaige  liim  (speaking  to  Mr  2\njlor,)  by 
proving  suits  lor  tliem,  and  thai  ihe  debtors  »ere  unalilc 
to  pa).  Tlie  Conslallle  Who  had  >prved  the  warrants, 
and  had  the  executions  in  Itis  hands,  svas  now  dead.  ;iMd 
Mr.  Taylor  could  imt  prove  jn-,(d  t-ncy  in  the  iiebiors, 
and  his  client  was  cliaig'd  vvith  all  ihcd-liis  nentioncd 
in  the  inventory.     The  administrator,  in  reiurning  his 


(482) 


haywood's  reports.  655 

inventory,  should  have  said  tlicse  debt'^  are  spcratc,  and  Apr.  1797. 
I  allow  myself  to  be  cliai'Sfd  with  tbein  when  rerovered,  ^■^^''^''^^i' 
these  are  desperate  ;  and  ibeu  be  would   not  have   been 
cliar.s;ed  with  tiiem  unless  recovered  ;  but  when  he  gives 
an  account  of  thhts  in  bis  inventory,  and   says   notliing' 

iahouf  them,  it  is  an  admission  in  law  that  the  debts  may 

I  be  had  by  ilemandint;  tb>*m  of  the  debtor. 
Note.— rWe  Bull.  X.  P.  f  Brid.  Ed.  J  140,  a. 

Spillcr  V.  Spiller. 

This  was  a  bill  filed  by  Mrs.  Spiller,  for  alimony ;  and 
her  counsel  now  uioxed,  that  so  nnirh  of  his  property 
might  be  taken,  as  would  (irobabl)  equal  the  decree  "f  the 
court,  saying  Mr.  Spiller  was  wasting  tiis  pri>pi'rt.v. 

Per  mriam — We  Inne  ordered  sequestra'ions  of  this 
kind,  when  we  have  found  tin-  Difiridant  withdriiwing  his 
j)roperty,  or  being  about  in  move  it  and  himself  tn  avoid 
,  an  execution  of  the  decree;  but  not  olhirwisi-.  It  would 
be  a  gi'eat  stretch  of  power  in  this  coui't,  to  ordfr  a  se- 
questration, or  a  bond  for  the  absoliiie  performance  of  the 
decree,  whenevei-  a  bill  is  filed  against  a  man  by  one  who 
.claims  to  be  his  wife. 

Note.  —  Vide  Anonymous,  anieSiT. 

Anonymous. 

This  was  a  bill  to  foreclose  a  mortgage.  Cochran  was 
mortgagor — be  sold  one  njoicly  of  the  preinisi-s  to  Uuitt, 
and  ills  partner,  in  fee — their  title  came  by  a  Siieriff 's 
sale  lo  Spiller.  The  mortgagee  had  a  decree  of  foreclo- 
sure, uule-.s  before  a  certain  day  the  money  was  panl. — 
Tliat  day  was  past,  but  no  absolute  decree  of  foreclosure 
yet  eii(ei-ed.  Spiller  moved  tcj.be  made  a  |)arty,  and  to 
have  the  decree  so  altered,  that  he  might  be  at  liberty  to 
pay  the  niouey  for  saving  his  equity  of  redemption. 

Per  curiam — Let  Mr.  Spiller  be  at  liberty  to  file  a  bill, 
stating  his  interest,  and  pray  ing  the  decree  ma_\  be  so  va- 
I'ieit  a-<  to  let  iiim  in  to  |iay  (be  money.  It  would  In-  un- 
ijusi  to  foreclose  the  equity  of  redemption,  and  'jar  his  ti- 
tle lo  bis  moiety,  which  ho  acquit ed  fairly,  wahoui  put" 
ting  it  in  his  power  to  prevent  the  foreclosure  by  paying 
the  money. 

ro 


(483) 


556  HAYWOOU'S    REPORTS. 

Apr.  1797.  Slate  V.  Moore. 

C-  nl'essions  whether  extoried,  or  ii'>t,  that  n-Ute  a  number  of  cir- 
cumstances, all  ot  wiiicli  ale  proved  by  other  teslimoiiy  iictually  lo 
exist,  lire  a^lmis^ible  against  the  prisoner. 

Indictment  fm-  murder,  and  not  pjuilty  pleaded.  Upon 
trial,  it  appeared  the  hody  was  found  near  Wadesl)or(>U£;li; 
and  .IS  I  lie  deceased  anil  Jloorc  were  seen  to_e;etluM'  a  I'esv 
dii^s  Itet'ore,  rln*  suspicions  of  the  neighborhood  fell  upon 
him.  Two  men  pnr'sued  him,  and  in  tiie  nei,e;hborho<id 
will  re  he  residrd,  met  him  in  an  old  fielil,  returniii,(;homu 
from  the  house  of  a  neit^libor.  They  tied  him,  and  or- 
dered him  to  |ii-odure  the  deceased's  money  ;  he  produced 
some  immiiliately,  and  promised  to  carry  tin  m  to  the 
place  where  the  residue  was.  He  carried  them  into  a 
swam|),  and  shewed  the  residue.  Tliey  struck  him  when 
tliey  first  met  liim,  for  ilenyine;  that  he  had  killed  the  de- 
ceased. Upon  wliich  he  owned  it,  and  said  he  struck 
him  v\ith  a  hickoiy  club,  standing  on  his  left  side  as  the 
deceased  rode  along  the  road  ;  that  he  dragged  the  body 
out  (if  llie  load,  and  left  the  club  l\ing  by  ii ;  that  he  co- 
vered the  body  with  brush,  in  a  place  where  the  road  for- 
merly ran,  about  ten  or  twelve  yards  from  the  present 
road.  These  circumstances  were  all  now  proven  to  be 
true,  ai.d  actually  lo  have  existed  as  he  then  represented 
them.  Ue  promised  to  show  them  where  the  saddlebags 
and  cloaihs  of  the  deceased  weie  ;  and  about  lour  miles 
from  the  place  where  the  body  was  found,  he  pointed  to 
a  log  lying  noi  far  from  the  road,  and  said  the  bags  were 
in  that;  Hie  witness  went  and  fnind  the  bags  there,  and 
the  cloathsofthe  deceased,  and  produced  them  now  in 
court ;  and  they  were  proven  in  Cuiirt,  lo  be  the  bags  and 
cloaths  of  the  deceased. 

'I'he  prisoner's  counsel  objected,  that  there  was  no  evi- 
dence in  the  present  case  to  aflfecl  the  prisoner,  without 
the  aid  of  his  confession.  The  money,  the  club  and  the 
bags,  aieonly  of  weight,  as  they  correspond  with  the  coii- 
Tcssion  ;  and  b\  'hat  means  prove  a  i  onsciousness  and 
knowletlge  of  tlic  principal  fad,  whence  is  inferred  Ihe 
guilt  of  ilie  prisoner.  The  confession  in  the  piesenl  in- 
siaiice,  ought  not  lo  be  received  as  any  pari  of  the  evi- 
dence against  the  prisoner — it  was  exioi-ted  by  vinleiice, 
anil  onglii  i:ot  to  iMve  bi'cn  heard  ;  and  lia^  ing  been  heard 
impti,pei  ly,  it  iiiight  to  be  rejected,  and  then  there  is  no 
proof  against  him. 


havwood's  keports.  557 

Fer  curiam — A  confission  extintptl  an<i  uncorroborated  Apr.  1797. 
by  ••iiTuiiistancps,  weiijlis  nothing  ;  but  aroiifession  wlie-  s.^"^'^*-' 
ther  fxioi-ted  or  not,  that  relates  a  number  of  circurnhtan- 
ces  «hirh  the  prisoner  rouhl  not  well  be  acquainted  with 
but  as  perpetrator  of  the  crime,  all  which  circumstances 
ari'  proved  by  other  tesiimony,  to  have  actually  existed, 
is  such  testimony  as  should  be  left  »o  the  consideratio-  of 
a  jury.  That  is  the  nature  of  the  confession  in  the  pre- 
sent case;  and  upon  such  testimony,  if  the  Jurj  are  satis- 
fied with  its  truth  and  sufficiency,  tliey  may  find  the  pri- 
soner guilty.  They  shuuld  be  very  cautious  however, 
and  examine  evei-y   ciriumstMnce  wiiii  the  most  critical  » 

nicety   before  they  d"  sn.     The  jury   found  him  guilty, 
and  he  had  judgment  of  death. 

Note. — In  this  case,  'he  saddle  bags  were  pointed  to  voluiilarily. — 
Also,  part  of  the  monty  produced,  before  any  blow  (fiven. 

NoTi  —Vide  1  Phi/,  on  Evid.  fod  ^m.  Edit.  J  89.  Stale  v.  Long; 
ante  455.     State  v.  Roberts,  1  Dev.  Rep.  259. 

Wilcox  V. .     [Sf.  C.  ante  223.]  (484) 

A  surveyor  and  jury,  who  vv«re  appointed  under  si-parate  orders  in 
several  distinct  suits,  shall  be  paid  lull  costs  in  each  suit,  all  hough 
Irom  the  locality  ot  the  lots  sued  for,  the  same  labor  answered  fur 
all  the  surveys. 

There  were  several  ejectment"  against  several  persons, 
who  were  settled  on  hits  in  the  town  of  Favettexille 
claimed  by  tlie  Plaintiff,  who  alleged  them  to  be  included 
in  a  tract  of  one  thousand  acres  adjoining  tlie  town.  A 
jury  and  surveyor  were  apiiointed  in  each  of  the  suits,  by 
distinct  orders  made  in  eacli.  foi-  the  puriiose  of  ascer- 
taining where  the  line  of  this  thoiisaiHl  acre  tract  really 
was.  After  the  trial,  a  question  arose  relative  to  the 
costs  iif  the  jury  and  surveyor,  wlietitei-,  as  they  were  the 
same  jury  and  surveyor,  they  should  be  allowed  in  each 
of  the  suits,  or  only  in  one.  In  other  words,  whether 
they  should  be  allowid  single  or  double  wages.  It  was 
resei'ved  for  several  terms.  Judge  Macay  saying,  he 
would  search  the  records  of  a  similar  case  decided  at 
Salisbury,  where  this  question  was  decided  :  and  now 
the  court  tleciiled,  that  they  were  to  bcallov^ed  in  each  of 
the  suits  ;  the  surveyors  were  to  return  plats  in  each, 
the  jurors  to  attend  in  each.  Had  one  suit  been  deter- 
mined, the  juror  must  have  attended  in  Mie  others;  just 
in  the  same  manner  as  a  witness  summoned  in  several 


558  haywood's  reports. 

Apr.  179?  distinct  suits,  is  entitled  to  wages  in  earli,  tliougli   they 
^'^"^^'^^  are  all  tried  on  the  samedav. 

Note. —A  witness  summoned  by  each  party  is  entitled  to  compen- 
sation by  each.       Peace  6?  Kittrel  v.  Person  ii  Gordon,  1  Murph.  188. 

Anotiymous. 

The  plPB  of  plene  administravit  shall  bf  received  at  all  times,  provided 
the  D'-fendant  does  not  come  in  with  it  at  a  very  late  period,  to 
delay  the  trial. 

This  suit  had  come  from  the  County  Court  by  appeal ; 
which  was  taken  for  this  cause,  that  aftrt'  the  suit  had 
depiMided  for  some  time  upon  the  j2;eiieral  issue,  the  De- 
fetidaiii's  counsel  moved  to  jnitin  the  plea  ofp/ejie  arfnjin- 
istravit ;  which  was  opposetl  there,  and  now  at  the  bar 
of  this  court,  because  if  the  plea  could  he  now  put  in,  the 
consequence  would  be,  that  a  Defendant  might  adminis- 
ter his  assets  after  being  served  witli  process,  and  then 
come  in  and  defeat  tlic  Plaintiff  by  such  a  plea. 

Per  miriam — Plene  administravit,  whenever  put  in,  re- 
lates to  the  day  of  service  of  ihe  writ  ;  at  least  it  must 
stall',  that  on  the  day  of  exiiibitiiig  the  Flaiutiff's  demand 
by  writ,  the  Defendant  had  fully  administered;  or  at 
least  that  the  writ  was  first  served  on  such  a  daj,  before 
which  day  he  had  no  notice,  anil  that  before  that  «lay,  he 
had  fully  administered,  &c.  This  plea  should  be  received 
at  all  times,  provided  the  Defendant  does  not  come  in 
Aviih  it  at  a  very  Lite  period,  and  thereby  delay  the  trial; 
otherwise  the  Defendant  miglit  be  subjected  to  pay  the 
deb'  out  of  his  own  estate,  when  perhaps  he  had  in  fact 
no  goods  til  br  administered  on,  wherewithal  to  pay  it. 
The  pha  was  admitted. 

Note. — Vide  Sawyer  v.  Sexton's  Adm'r.  2  Hay.  67.  Beid  v.  Huter, 
Con.  Hep.  488. 

(485)  Barges,  by  her  Guardian,  v.  Hogg. 

A  plea  in  abatement,  that  tiie  Plaintiff  is  an  alien,  is  not  sustainable  in 
the  action  of  trespass  guare  ctausum  fregit. 

Trespass,  quare  clan  sum  fregit ;  and  a  plea  in  abate- 
ment that  she  is  an  »lieii.  and  demurrer  thereupon.  Af- 
ter argument  by  fFiUiams  (av  tba  Defendant,  and  Hay  fur 
Plaintiff. 


HAYWOOD  S    REPOmS. 


559 


Fer  curiam — An  alien  fiinnot  maintain  ejcrtmpiit,  or    l^''  ' 
any  action  i'ov  t\\^•  recdvery  of  >  fi'ei'inild.     Aliens  aro  not 
allowed  to  acfiiiire  real  |)io|)ep!>  ;  hnt  if  an  alifii  lia--'  pui-- 
clia-cd  real  piojierty,   and  is  m  jiossrssion  of  it,  the  |iiir- 
cliase  is  _q;(io(l.   and  will  bf  for  t\v'  benefit  ^.f  the  public, 

'wlienever  Itie  State  thinU-  pr 'pei;  to  exeit  is  ii,c;lit,  by 
call-ins  an  ofBce  to  be  fonnd  ;  bnt  b.-foie  scicli  advantasje 
is  taken,  no  itidividual  ran   'tiie'Ceie  witli  ilie  fictliold, 

I  and  violate  the  possession  of  ttie  alien  (.urciiasc  r.  His 
possession  is  lav^fnl  as  to  all  persons  but  tiie  State,  and 
he  may  demand  dama_s;i'  for  the  violation  of  ii,  in  a  per- 
sonal action.  Wliei'eforc,  let  (be  D'-lrndant  answer  over. 
See  Dyer  283.  5  He.  52  b.  Terms  de  ley.  Verba  HJien. 
Co.  Lilt   2.     Leonard  61. 

Not*.  — In  tliis  c:i«e  the  lai<tls  were  purcliasetl  b'  the  Pl;iint!fi'«  fa- 
ther, wtio  was  a  ci'izin,  and  {lied  li  -.ivin^  the  I'li.ii.tiff,  his  daut;hter, 
residinjj  in  Great-lirimin:  in  wliich  case,  it  suns,  tlie  frteliolci  is  cast 
upon  the  Stale,  as  the  law  will  not  :illi)w  the  alien  lo  inherii,  a^id  dif- 
fers fiom  the  case  of  the  piiicliuser  wlio  mav  take  and  continue  pos- 
session lill  an  office  cniilles  tiu  pnl)lic.     1  liac.  .■ibr.  81. 

Note. — Vide  doe  on  demise  of  JIlowU  v.  Ilofrniblow,  2  Hay.  37. 

Anonymous. 

This  was  a  special  case,  in  which  it  was  ref'rred  to 
the  court  to  decide,  whether  or  not  an  action  on  the  case 
upon  assumpsit,  would  lie  for  the  use  a»ul  occupittion  of 
a  bouse.  Tiic  declaration  stated  the  use  and  nccnpiition, 
and  a  promise  to  pay.  M:  Hay  cited  2  Cro.  59G,  668, 
684.   Cro.  El.  118,  s'sQ.   Cro.  C.  414. 

Per  curiam — An  express  i-roinise,  by  all  the  bor)ks, 
will  support  this  action — some  of  them  say,  an  implietl 
promise  will  nor,  because  debt  for  rent  is  the  a>sit:;ncd 
action — tiie  promise  here  s'at<'d,  may  be  taken  to  have 
been  an  express  one,  as  the  contrary  is  not  stated  in  the 
speiial  case.     The  PlaiiitifT  bad  judgment. 

Judgments  ha>e  been  given  for  the  Plaintiffs  upon  a 
quanlum  meruit,  before  the  II.  Geo.  Z,  c.  19.  Vide  5 
Mo.  73. 

Note. —  Vide  Hayes  v.  Jlcre,  Con.  Itep.  19. 

Tuton  V.  the  Sheriff  of  Wake. 

If  the  Sheriff  returns  an  escape  to  3  capias  ad  renjiondeiubim,  he  maybe 
sued  for  the  escape,  and  not  be  proceeded  against  as  bail. 

To  a  cnpins  ad  respondendum,  lie  returned  an  escape  ; 
and  this  was  an  action  for  the  escape. 


560 


HAYWOOD  S    llEPOUTS. 

Hat^'ood,  Jiistirc — In  England,  an  action  will  lie  fori 
an  rscapc  on  innsiip  pioress,   wlietlier  the  escape  be  va- 
liintMry  or  neglij;ent ;  for  tliere,  vvlieti  the  Slieriflf  has  ta-j 
ken  the  body,  he  must  produce  it,  or  return  a  bail  boiid[ 
anil  if  he  has  him  not  at  the  day  ussijjneclbj  the  writ, he  fails 
in  his  duty  :  but  here,  the  Sheriff  may  if  he  pleases,  permit 
the  party  to  .e;n  at  large,  and  become  his, s|)ecial  bail  under 
the  act  of  \?77,  ch.  2.  sec.  16  ^'  76 — so  that  here  perhaps, 
it  is  not  an  escape  subjecting  tlie   Sheriff  to   an   action, 
if  he  has  not  ihe  body  at  the  day.     The  Plaintiff  may  con- 
sider the  Sheriff  as  bail,  and  the  Delendant  in  his  custo- 
dy, and  proceed  to  juilgnient  ;  wheieas  in  England,  the 
Plaintiff  cannot  proceed  in  such  case  to  judgment.     If  the 
Sheriff  is  to  be  considered  as  bail  when  he  retains  an  ar- 
rest without  a  bail  bond,  and  has  not  the  |)arly  in  prison, 
then  he  may  surrender  the  Defendant  at  any  time  befme 
final  jndg:ment  against  himself  as  bail  upon  a  scJ.ya. — 
whifh   he  cannot  do  if  an  action  for  escape  lies  ag.iiust 
him.     In  England,  a  voluntary  permission  to  go  at  laige, 
will  make  a  ?eca|)iion  by  the  Sheriff  unlawful — here,  it 
will  not.     The  Sheriff  is  considered  as  bail,  and  pei4iaps 
may   retake  hira  for  the  pui'pose  of  making  a  suirender'. 
U|)on   these  considerations,  it  is  possible  that  the  aclimi 
for  an  escape,  where  it  is  permitted  by  the  Sheriff,  is  not 
the  pro|)er  action  ;    hot  (hat  he  ought  to  be  proceeded  a- 
gaiiist  as  bail  by  sd.fa.     Perhaps  this  esctpe  may  have 
been  effected  by  fi.rcc  and  violence,  under  such  circum- 
stances as  to  make  it  a  rescous.  and  then  the  Sheriff  is  ru)t 
liable  by  any   lasv.     It  is  true,  lie  has  returned  simply, 
that  the  pr'isoner  escaped  ;    but  as  he  must  have  known, 
that  a  negligent  or  voluntary   escape  would  not  excuse 
him,  he  probalily   intended  to  have  returned  a  rescoMS. — 
An  opinion  was  (jjixen  by  some  of  tin  j)resent  Judges,  not 
long  ago  at  Halifax,  that  a  Sheriff  upon  a  negligent  es- 
cape, might  be  ronsidered  as  bail,     i  wish  to  consider  of 
the  case  before  1  give  my  Judgment — I  wish  it  to  be  spe- 
cially statd. 

It  was  so  stated  accordingly,  and  afterwards  in  this 
term  was  argued  by  Duffn  for'  the  Sheriff,  and  Taylor  Um- 
the  Plaintiff;  and  tlie  court  gave  judgment  for-  the  Plain- 
tiff, saying,  the  returning  an  escape  excludes  the  suppo- 
sition of  tlie  Sheriff's  having  become  bail — though  Mr. 
JDiiffy  strongly  insisted,  that  the  Plaintiff  by  pcoceediiig 
to  pidginent  as  he  had  done  in  the  County  Court,  iiad 
thereby  admitted,   notwithstanding  the  rciurn,  that  the 


HAYWOOD'S    REPOllTS. 


561 


■Defciul.int  was  in  com-t,   wliicli  could  not  otherwise  be,  Apr.l79r. 
tiiHti  by  ills  rctarnim:  to  pi-JKon  ni'lci- the  return,  or  by  l)c- 
inj^  consiih-rcil  ;is  bailed  by  thi' Sheriif.     To  which  it  was 
lanswticd  e  contra,  that  the  jiidginent  is  crroncons  f  o-  that    C^"'  ; 
cause,  but  is  to  be  consideren  as  a  good  judgment  till  re- 
vci'sed. 

NoTK — Viik  Swepivn  v.  H'/iitaker,  and  ihe  note  thereto,  aide  224. 

Anonymous- 

The  decree  of  the  com-f  made  at  a  former  term,  was, 
that  eacii  party  should  pay  his  own  costs.  Upon 
which  a  doubt  arose,  wbcilier  each  party  should  pay  half 
flic  Costs,  or  only  the  costs  which  had  accrued  upon  bu- 
jsiuess  done  for  himself.  And  at  Ihe  last  term  it  was 
jhi-out^ht  before  tlie  court,  who  decided  that  each  party 
should  pay  for  Ihe  process  issued  foi-  his  benefit.  And 
then  another  ((ucstion  arose,  whetliera  copy  of  the  bill 
taken  out  to  be  seivcd  on  the  Defiiidant.  was  for  the  Ix'uefit 
of  the  Plaintiff  or  tlie  Deicudant.  And  at  last  term,  after 
much  argtimeot,  Williams  and  Hatwooii,  Judges,  dif- 
fered in  opinion.  The  matter  was  again  moved  now  and 
argued,  and  the  court  clearly  agreed,  th  it  it  «  as  a  part 
of  the  pi-ocess  to  bring  ih."  Deleodant  inio  court,  without 
which  be  could  not  be  efTertually  bi'ought  in  ;  and  lliei-e- 
fore,  it  was  for  the  PlaintilT's  benefit,  as  much  as  the 
subpoena  was,  and  therefore,  tliat  he  should  pay  the  ex- 
pencc  of  it  under  the  decreee. 

Anonymous. 

A  writ  issued  against   two  jointly,    and   one   plead  in   abatement. — 
Plaiiitifl'  was  suffered  to  take  judgment  against  the  other. 

A  writ  issued  against  two  upon  their  Joint  and  several 
bonrl,and  was  returni'd,e.\fcuted  upon  b  itli.  One  plradcl  in 
abatement,  that  the  pi'ocess  was  not  sei-ved  upon  him  in 
due  timi',  and  the  wiit  was  abated  as  to  him  ;  and  then 
Spiller  moved  to  have  judgment  against  the  other. 

Haywoou.  Justice. — This  action  as  you  have  brought 
it,  is  a  joint  one,  and  an  abatement  as  to  one,  is  iherefore 
an  abatement  of  ihe  whole  writ ;  for  otherwise  yiiur  jiidg- 
inent will  not  be  as  broad  as  the  writ — tiiat  demands  a 
debt  agaiosl  two,  the  judgment  will  be  ag  .^iisf  one  mily  j 
the  other  by  his  contract,  is  to  be  contributary  to  the  debt, 


562 


HAYWOOD  g  UEPORTS. 


(488) 


■""■       'and  tlie  court  will  not  tliscliarsjn  iiiin  because  of  an  iri'o- 
i^iilar  sotvicc  of  pidCi's-i,  ami  l;iy  tlic,biii(li'n  of  tlic  whole 
iipm  tlicotlicr — thatdoi'-  mil  t^o  to  tin-  mrrits,  nor  dues  it  j 
prove  liiin  siot  to  be  c  iiiUibutarj',  as  you  bii\e  declared  I 
lip  is. 

Stone,   Jiistir.'. — 1  tliink  tlie  riainfiflr  is  entitled  to  I 
judgment.     If  two  are  sued,  and  botli  plead  the  general  T( 
issue,  and  tlicieisa  verdict  for  one,  tlie  Plainlift'may  hnve 
judgment  ai^ainst  the  otlier.     SpUlcr  then  cited    Gil.  L, 
Ev.  159    5  lie.  119,  and  tlie  court  pcriiiilted  him  to  enter 
his  jnilgineiit. 

Quitrt  de  hoc. — For  if  two  be  sued  upn;i  a  joint  bonJ,  and  both  pi  -c! 
nan  est  factum,  and  it  be  found  for  tlie  one, and  a.i;ainstth  other,  then 
it  :ippe:irs  one  of '.hem  can  never  be  made  contributary.  Thoiigli  tlie 
PlaiiitiiTshould  be  put  to  a  nevv  aclioii,  he  is  lonver  discharged  by 
tlie  verdict,  and  Iherefore,  ilie  law  will  give  judgment  ^.^'ainst  the 
other,  as  there  must  be  a  writ  of  the  same  form  against  him,  siiould  a 
new  on^  be  taken  out.  I!ut  where  one  only  abates  ttie  writ  us  to 
himself,  that  does  not  prove  him  notto  lie  a  co-obligor  ;  it  is  still  lobe 
taken  accordinij  to  the  1*1  iiiitifl''s  avermcni  in  his  declaration,  that  he 
is  a  co-obligor,  and  jointly  con  ribiitary  with  the  otlier,  and  tliere* 
fore  jointly  to  be  proceeded  .gainst  wlh  him  ;  tnis  oth'T  oupht  not 
to  Lje  made  answerable  for  tlie  whole  debt,  when  the  Defemlant  who 
pleaded  in  abatement,  by  Ins  contract  is  equal])  liable,  merely  because 
the  Plainiiffhas  cliosen  tor  insiancevto  nnsnamc  him,  or  has  commit- 
ted some  otlier  irregularity,  wliich  causes  the  writ  to  be  abateablo  as  to 
one.  The  Plaintiff  is  bound  by  law  and  his  contract  to  sue  boili.  If 
lie  sues  one  only,  the  writ  may  be  abated  tor  that.  Stru  503,  andyet 
according  to  this  determin.ition,  the  Plaintiff  may  do  th.it  indirectly, 
which  the  law  will  n-it  snff.  r  liini  to  do  directly  ;  tor  he  m.iy  misname 
one,  and  have  an  abatemt  ni  as  to  him,  .md  then  proceed  against  the 
other  alone.  It  is  no  answer  to  say,  that  joint  bonds  ire  now  consi- 
dered in  law  .^s  joint  and  several ;  for  if  the  Plaintiff  sues  upon  itasa 
joint  bond,  tli'en  ii  is  in  all  lespcct.s,  still  to  be  held  as  a  joint  bond, 
anil  ill  the  common  law  rules  iispuciing  joint  bonds  attach  upon  it. 
If  there  he  two  Defenduiils.and  tli.y  plead  several  pleas,  and  tin  Plain- 
tiff take  issue  Ujion  one,  and  de.nir  to  the  other,  and  the  issue  be 
found  for  the  Oeleiidaiit, t  :e  Cuuit  will  r..t  proceed  on  the  demurrer. 
1  Bcic,  .ib.  15.  Hob.  250  et  sic  vice  versa — lor  in  iioth  c  ses  the  suit 
being  once  abated,  it  would  bi-  ini|'ertin  nt  to  jud,;e  whether  it  ought 
to  abate  on  the  other's  plea.  Vide  also  ffob  180.  where  Plainiiff  .-ues 
two,  and  is  nonsuit  as  lo  one  before  jud(;mini  aga  nst  the  other,  he 
is  barred  as  lo  both.  If  there  are  two  executors,  and  the  one  is  mis- 
numcd  and  abate  the  writ,  it  is  abated  as  to  both.  1  Bac.  .ib.  11.  6' 
Mo.  10  riioUj,'h  one  l)efend.uil  may  be  acquitie  )  in  part  and  con- 
demned in  part  of  a  trespass  ;  or  one  condemned  in  the  action,  and 
the  otiii  r  acquitted,  ihe  wrii  c.<nnot  abate  as  to  one  and  subsist  as  to 
the  oiher,  though  8  Co.  159,  seems  e  con(ra. 
NoTK. — This  decision  was  ceriainly  an  erroneous  one. 

Anonymous. 

Tiic  declaration  staled  an  uiiilertakiiig  by  two  with  a 
third,  tu  run  a  race  with  him,  and  to  pay  him  if  he  won 


Haywood's  reports.  563 

The  evidence  was,  of  ;»  race  male  lietween  one  of  tlietwo  Apr.  179T. 

and  (lie  lliird  ;  t'ov  pei'(ofin;iii(f  vvlni f,  the  other  of  the  >^~*^^i^ 

tW"  Ijei  aine  his  siirei>  on  ihe  day  oftlie  race. 

Per  curiam — This  is  a  fatal  variance — yiii  should  have 
stilled  Hie  (ontract  as  il  really  vvhs.  Mr.  Taylor  fii-  the 
Plainiiflr  iosisieil,  he  couM  maintain  it,  and  pra_\ed  time 
foi'  that  |iui'|)osi'.  So  a  special  case  was  made ;  and  af- 
tern.irds,  in  this  term,  the  coiiit  callio!;  ilie  cause,  Mr. 
Taylor  declined  arguing  it,  and  the  Plaintiff  was  noii- 
isnitc'l. 

Note. —  Vide  Buller'sMsi  Prius.  145. 


HALIFAX,  APRIL  TERM,  1797. 

Jones  V.  Jones. 

Kocks  in  a  river  above  ilie  surfuc  ■  of  the  water,  are  vacint  property, 
and  tile  subjects  of  our  entry  laws. 

Trespass,  quare  clansum /regit.  Issues,  liberiim  tene- 
vientum,  ;iiid  justiHcation.  On  the  trial,  the  Deti ndant 
admitted  he  had  np.iired  a  stand,  cncted  in  the  river 
Rojiioke  to  catch  fish,  and  that  he  had  fished  there.  It 
was  Slated  h>  Ihe  Plaiiniff 's  cminsel,  thai  this  action  was  (489) 
bfoiiglit  for  the  piii|)ose  ol  tryinj;  the  risrhi  of  fishing  a- 
inoiigsi  the  isLiiidsat  the  falls.  The  Plaintift'dediiced  his 
title  ;is  follows  :  First  by  a  (jjrant  from  ihe  Go>.'rnor  to 
Griffith,  fif  thirty  sexeii  small  islands — Griffith  convey- 
|cd  to  P.  Johnston,  and  she  to  tliePlaintilf.  Also  he  pro- 
duced a  Siatr  !:;rant  for  these  islands,  rocks  and  stainls, 
issnid  under  the  act  of  1787.  He  also  produced  a  .u;i  ant 
for  an  adjact'iit  tract,  the  hoiiiidaries  of  wliicli  included 
one  bank  of  the  river.  His  couiistl  stated,  that  ihi-  stind 
in  question  was  in  th<-  middle  of  the  river,  that  i!ie  Plain- 
tift"  Il  id  a  liile  to  these  islands,  rocks  .md  stands,  prior  to 
1787  ;  also  a  title  under  the  act  of  1787,  and  a  title  to  one 
of  ihc  bank^  by  another  j^rant.  The  Defendant's  (  onn- 
sel  rested  his  defence  on  the  linig  possession  the  Defend- 
ant had  of  this  stand  prior  to  llu  State  siant  ;  and  that 
as  ilie  river  above  the  falls  was  tioi  navigable,  the  bed 
thereof,  and  the  right  of  lisliiiig,  belonged  to  the  propri- 
etors of  tiie  adjoining  lands  on  each  side.     He  then  gave 

71 


564 


HAYWOOD'S    KEPQRTS. 


Apr.  I797.(>vi(lpnce  of  llip  ainiquity  oFiliis  staDiI,  and  that  the  rnck 
•^'^'^^^  win  ic  it  i^,  liiiK  bciii  reiideri'd  an  pxrellcnt  place  for  fisli- 
ins.  iiid  stands  twu  lunidrtd  yards  from  tlie  islands,  and 
on  tlic  sdiitli  side  of  tli<  river. 

TIm'  roil  scl  fur  the  PlaiHtiflTji^romideil  liis  argumpnl  on 
the  l(tllo\\iir;c  points  :  Observing  that  ihis  rork  or  stam!. 
as  ii  Was  liot  opposite  to  any  island  claimed  l)y  the  Plain- 
tiff, ma}  It  hdej-  tlie  Jndgment  to  he  given  in  this  ra^^e,  less 
derisixeof  ilicgeneirtl  (juestion  respecting  the  islands  and 
Stands  ailjaceni  ti-  tliem,  than  was  ai  first  intended,  he 
pi'i'p  sed  first  to  ronsidei',  how  the  lonimun  law  stood, 
an<t  \  hii  iijjht  the  Plaintiff  h^d.  pi  ior  to  the  grant  of  I 
1787.  as  to  which  he  sued.  The  soil  or  bed  of  a  naviga- 
ble iner  belongs  to  tiie  public.  Doug.  429.  1  Mo.  105. 
And  the  coc  reel  idea  of  a  navigable  river  is,  one  whicli 
ebbs  and  flirxs,  so  far  as  it  ebbs  and  flows.  Dotig.  427, 
441.  Cnwp.  86.  Yei  noiwithsta-iding  thi-  general  right 
is  in  ill'  public  in  navigal)le  ii\eis,  a  private  man  may 
arqiiiic  .1  rislit  to  a  free  fishery.  4  Com.  4+8.  3  Term 
253.  4  Burr.  21 C2 — and  hence  it  follows,  tliat  even  in 
in  iiav  i^alile  rivers  or  arms  of  the  sea.  one  of  our  citizens 
may  'LquiiT  an  exclusive  right  of  fishing  by  a  grant  from 
the  Slate.  V\  hcicver  is  the  owner  of  the  soil  or  bed  of  the 
riMw,  lia<  the  exclnsive  right  of  fishing  ;  and  that  owner- 
ship of  i||i-  soil  (H'  t)ed  of  the  river,  may  be  granted  by  the 
Slate,  and  has  been  conxeved  to  ns  under  the  grant  of 
1787.  Hits  Sicilies  the  exclusive  ligiit  of  fishing  to  the 
(490")  .'s'lio'ee.  2  II.  Com.  +0.  1  InsL  12-Z.  In  this  country 
there  is  no  such  tlnng  as  title  by  presci  ipiion,  and  there- 
fore, it  lannot  be  pietended  thai  a  title  may  he  arqnired 
by  it  to  the  cuertin  niiig  of  our  grant.  1  Inst.  122  note  7. 
A  i'ighi,  as  it  is  sometimes  acquired  in  England,  by  long 
usage,  iigiinst  the  ovMier  ot'  iiie  soil,  cannot  appl>  here. 
F.  JV.  Ii.  200.  And  then  there  remains  no  other  means 
of  acquiring  .  h  excliisixe  right  of  fishing,  hut  by  a  title 
deriwO  under  the  owiici-  of  tin-  soil,  5  Burr.  2814 — and 
this  the  Defendant  does  not  pretend  to. 

Counsel  lor  the  Defendant — This  river  is  cither  navi- 
gable, or  it  is  not.  If  ii  is  a  navigable  river,  the  right  of 
fishing  ill  it  is  coininon  to  all  the  ciltzens — the  bed  or  soil 
of  it  fannot  be- granted  at  this  da},  noi'  can  an)  citizen 
be  distiirhed  or  restrained  of  his  right  by  an)  State  grant. 
Tlic  Crown  m  England  Maslongago  restrained  from  ma- 
king suchgfants.  6  Mo.  73.  4  Bac.  M.  156.  1  Mod.  lOG. 


HAYWOOU'S    REPORTS.  565 

If  it  13  not  a  navigable  river,  ilieii  the  bed  of  tlie  river  be-  Apr.  1797. 
lorisff  to  the  owners  (ui  eacU  liile  ;    each  el  .iininir  'n  the  ^^-v^n./ 

miiidle  . if  the  w..ter.     4  Burr.  2  62      4  Bnc.  M.   153 

Doug.  427.     4  Bttc.  M.  156      Valtel  104,  sec.  246 — and 

I  tlien  it  is  not  siihject  to  be  granted  lij  IM-  Siaie,  bi mg  al- 

!  ready  appiopriatid.  All  tint  the  Lejjislatin  c  ran  do 
with  respeit  to  the  rislit-^  uf  fishing  in  iiavii;al)K'  ri\ers> 
is,  to  pass  la\\s, presc-iil)irig  the  uioih-  in  which  that  right 

Js  10  be  exercised  by  the  <iiizens.      Vuttel  104,  sec  246. 

Jin  England,  a  franchise  of  tree  fishery,  must  have  been 
granted  before  the  charter  of  I^'iiig  John — for  ill  such 
grants  in  future  are  prohibited  tiy  tha"   charter. 

Admit  the  islands  may  begnuiled,  yet  a  grant  of  tbeiiv 
will  in)i  pass  the  rock,  which  stands  in  the  i  ivcr  at  a  great 
dislaiice  from  either  of  them — but  in  tnitli  the  isl.nids  are 
not  gnntable — they  belnng  to  the  owners  of  the  nearest 
adjacent  lands  ;  even  the  grant  of  1753,  comprising  the 
islands,  did  not  extend  to  this  rock,  noi'  was  legally  com-, 
jnelr  nded  in  the  State  grant,  issued  iindei»the  ai  t  of  1787. 
That  art  .says,  tliat  all  and  every  person  and  jutsuns  own- 
ing lands  on  said  river,  at  and  against  and  ( (int'goons  to 
any  rocks  or  islands  not  yet  entered  and  taken  up.  shall 
liave  the  privilege  and  liberty  of  taking  ii|>tlie  same  agree- 
ably to  the  laws  for  taking  up  land  now  in  fnrce,  provi- 
ded they  enter  and  lake  up  such  isLuuls,  rocks  and  siands 
■within  six  months,  &,c.  The  rock  in  (piestion,  was  near-- 
er  to  the  lands  of  another  person  than  the  grant' e — his 
lands  are  not  at,  adjoining  and  contiguous  to  tliis  rock, 
in  comparison  with  the  lands  <'f  that  other.  The  grantee 
was  :  ot  a  person  intended  by  iln-aci  to  haw-  the  right  of 
pre-emption.     The  grant  ha--  issued  upon  wrong  sugges-     /-^qi.-v 

tioiis,  and  is  therefore  void.     Bull-  76.      1  Co.  •J4,  45 ^       ' 

Tlie  Governor  was  not  antlioi-ised  to  execute  such  a  giant. 
Thus  the  grant  is  not  only  vnid,  because  ihc  rock  belong- 
ed to  the  owner  of  (he  land  iijarest  to  it,  but  also  for  this 
otiier  reason,  that  it  issued  vvithout  authority  given  by 
the  Stale  to  issue-  it. 

Counsel  for  the  I'laintifT — They  relj  uixin  their  pos- 
session, but  possession  cannoi  lipen  into  title  unless  :tbe 
a  Continued  and  constani  possession — the  possessimi  of 
the  Defendant  has  been  for  bve  or  six  weeks  only  in  a 
yeai,  therefore  it  cannot  avail  liim.  It  is  admiited  on 
the  other  side,  that  no  right  can  bcaccpii.ed  in  this  coun- 
try by  prescription — 1  t>hall  therefore  say   nothing  nior« 


566  haywood'p  beports. 

Str,  179?.  on  fliesp  points.  It  ix  Hii°:iiril,  that  iliis  is  a  navij^ahle 
^^"'''^^  river,  hikI  iln-refnii*  rniild  not  be  (granted,  and  I  Bl.  Ccnn. 
286.  2  Bl.  Com.  39,  is  relied  nn.  It  is  true,  in  Eiisilaiid 
such  giarits  uere  restfaincd  by  pai-tirular  Ihws.  miend- 
ing  ti>  re>*traiii  the  prriojsjHii*!* ;  but  these  laws  are  not 
in  force  hi  re — our  Li'gislntive  body  is  unly  resti'Mined 
and  regnlaffd  by  the  Constitution.  Acts  passed  by  them 
ior  ihr  (lublir  goctil,  and  mii  .rput^nant  to  t'lat  Cnnslilu- 
tion,  must  be  enf'orred.  It  is  not  a  true  position,  that  in 
casrof  private  ri>ers,<>r  ri\ers  not  navigable,  the  islands 
belling  to  the  owtii'i-s  of  ihi-  adjacent  land.  Surli  islands, 
eitliei  on  navigalile  oi  uima\ig:ible  rivers,  contain  laud 
'  and  territory,  and  nmst  bi    entered  befme  they    Itrroine 

privati  piojierty.  This  apcears  by  ouientry  laws.  1777, 
C.  I,  5  10,  and  if  islands  are  to  be  entered  ai>d  do  not 
follow  the  .adjoining  lands,  then  upon  the  principle  of 'he 
Sell  ndant's  connsci,  the  uw  ners  of  thr  islands  are  enti- 
tled lo  a  part  of  tin'  lie'l  I'f  tiie  rinr  on  each  side  of  the 
islands.  The  art  of  1787,  is  Ion  (led  in  good  policy,  and 
dm  s  not  exceed  the  poweisol  the  Legisia  nre.  |i  was 
made  to  prevent  strangers,  not  cilizens  of  North  Cm  o- 
lin;-,  IVnm  stopping  up  tiie  ri*('  «  itl>  their  stands,  and 
depriving  the  lai  <l  hnldus  <f 'Ik  binefit  of  fishing  ;  sm  h 
persons  trespassed  upon  the  a<<joining  laud-,  rominitti'd 
injuries  and  tn-nsgiessed  the  laws  of  tin'  countiy,  and 
immediately  withdrew  themseUes  into  Viigmia  liefMi^e 
they  were  taken  by  process  issiu'd  for  I  lie  piir|iose;  oi  if 
they  were  by  accident  appi-ehended,  they  wiie  generally 
unable  to  make  conpensaliou.  Under-  the  iliiectioiis  of 
the  court,  the  jury  ga\e  a  ver'dirt  for  the  I'lainiiff. 

Note. — Tins  case  ea  rf-Zo/ione,  and  I  hav'  b>  ■  !■  informei!  iha'  'he 
judgment  of  till  court,  (Williams  ;»n(l  Macat,  JikI^i  s.)  pinr.i'fded 
upon  iht  ground,  tliai  llie  n.cks  ii>  ihe  T\'  r  .ibuvi  ttic  surt.icc  of  the 
water,  were  vacant  property,  and  tlie  subjects  of  our  entiy-laws. 


(492) 


■  miB^Qim" 

NEWBERN,  SEFTKMBERTERM,  1797. 

Simon  Bright  v.  Robin  \Vhite. 

A  purchaser  ot  lands  under  a  Sher'ff's  sale,  c  nnot  sustain  an  action 
for  mnney  had  and  received  apiinst  the  Shei  iff,  upon  the  gmund 
that  'br  tule  was  l)»il,  inA  the  con^ideTMtion  had  theielnre  ti.:!.  d. 

Ai  lion  on  the  rase,  for  money  hud  and  irreived  to  the 
Plaintiff's  use  ;  and  the  general  issue  pleaded  ;  and  upon 


lIAVWOOn's  REPORTS.  567 

llie  trial  tlip  cvidoi.n-  "iis:  (li.t  Ox  m  olitained  a   jndir- Sep- IT'S". 
mttut  : 'j^awiyt  Bright,  (lie  (all. «i    ■  T  li  e    P;:.;i.tifr.   wlmr   >^^^~>-' 
ii)p(>i'  (  xecuiioii    isMitd,   Hinl    ilic    Di  Ici  (i:iiit,    as    Sl.i'riff", 
S<il(l  ii  tract  (if  li.!i(l  tn  tiK'  Pli.in'iflr  In  >iitij-f>  it— tlliil  llie 
I  Fliiiii  iff   .  ftc  Wiii'ds  iiis'i'utfcl  ;iii  cjifimeiit  to  ii-cover 
I  pnsHfssjoii.  iiiid  llicrewiis  a  M'l-rlii  i  :iii<t  Jii(l_i!;inpiir  «(;:.iiist 
,  him  ;  the  Di'lenflaiit  p-iid  o\tr  pui"  <A'i\v  (nnTliiisc  nmiiey 
to  Oram,  imd   took  Ins  leccipt :  tin-  i-o<-idiic  lir  |Mid   to 
BrighL  ilie  Dil'<"  dimi  in  iln-  aciinti. 

Budgir.  tor  the  PI  .idtiff,  arfi^iii'd.  tliat  -.tltlioiin-ii  no  Ciisc 
precisely  in  piiiiii  •witli  ihe  piesen'  was  to  be  (woiid  in  (lie 
bonks,  wiiere  a  Plaii.iiH"  under  sik  h  <  irriniistantis.  has 
be<'ii  lield  lo  be  eiititird  to  rec'i'er:  jp'  (Cttiiin  |iiiiicl- 
j  pli  s  tiad  lioeii  est.iblislied  by  a  tiunibei'  of  cipeisioiis,  vliiiii 
j  gi>  the  letitrili  "I  w  an  antiiic;  l,e  jiidiiiHii'  ue  are  now 
se- kins;.  It  is  h^iil  down  in  1  Burr.  !l'2.  iliat  \\lierevep 
a  peisiiii  has  paid  nionej  iiinni  a  coiisideraliiin  wl.icli 
liappens  to  Tail,  or  wliere  ex  oeqiio  ct  bnvn,  he  oiip;ht  to 
ha\c  his  nmiiey  icturned,  his  n(  tion  will  lie  to  recoM-r  it 
ba(  k.  it  is  |i. undid  in  rr;ison  and  Justice.  Hrie  ilic 
coii-idrratioo  lias  I'aili  il.  the  PlaintlH'  ii;:s  not  been  able 
to  nbiain  pnssis'-ion  of  the  land  I'm  which  he  p^>id  his 
money  ;  ijv  land  belnim;id  to  a  third  p-rsi!ii,  and  ir.<'.  to 
the  Defendant  in  the  ;icti':i.  where  Oram  "as  Plaintiff. 
The  Sheiiff  has  received  the  inoniy.  and  ou;;lif  to  reiorn 
it  It  cannot  be  denied,  that  if  the  Slrriff  lev  ies  an  exe- 
cution upon  ilip  procei-ty  of  a  third  person,  be  is  li-.ible 
to  that  peison's  ac'ion — the  writ  does  not  aiitboiise  a 
seizure  of  any  propi  ity  hut  that  of  the  Defendant's  — 
There  is  iqual  re.isnii  wiiy  he  simu  d  he  liable  to  the  ac- 
tion of  the  vendee,  for  llie  writ  docs  not  authorise  him  lo- 
sell  to  the  \riidee  any  other  properly  than  that  of  the 
Dei'i  ndant.  Hi  !-■  gniltj  of  a  v  i  riiia;  and  deceit  to  the 
vendee,  if  he  sells  to  him  the  properly  of  any  other  1ii;»n 
the  Difendant.  Should  a  private  man  sell  property  as 
Ills  ravn,  which  tiiiiis  out  not  to  he  so.  he  is  liable  lo  the 
action  nftlie  vendee;  and  wlij  f  Infold  not  ihc  same  law 
cxteiMl  to  the  case  of  a  Sh< nff?  M  ilh  respi  ct  to  the  sale 
of  lands,  tlie'C  are  as  stioni;;  reasons  for  iiiakin,i>;  the  She- 
riff responsilile,  as  there  ai-e  for  inakint:  a  private  vendor 
so.  In  the  latter  instance,  lie  buyer  iii^iy  (all  upon  the 
vpi.doi'  foi-  an  ins|,ecti(iii .  f  his  tide  d-''!!-,  and  ihe  sellei- 
hi'S  'In  in  to  shew  ;  if  the  hiiy>'i  willt.'ki  r  as'ii;ablf  care, 
he  cannot  be  deceived  ;  but  where  a  Sheriff  sells,  lie  has 


568  Haywood's  keports. 

Se;>.  1797.  „f,t  f|,p  fjtip  jlecds  ;  tin  vpudi)!  Iiiis  iio  DiPans  of  getting 
''^"^''"^^  tliinr  for  lii^5  iiis|)('('ti<'ri — tlicrel'ic  "lie  Sliiiitt'  vlioiiltl  be 
(493)  CHicfnl  lint  to  sell  hiids  tlif  pi'<i|irit}  ol  ii  tliird  iirrsun. 
Hi"  cit'd  I  Term  732,  to  pi  on  iliat  tlic  shIc  of  .lU  aiiniiity 
by  Hii  iniiJid  and  \oiil  dn-d.  subjects  tbe  vendor  (o  an 
action  foi-  tbt  roiisidei:  lion  money  ;  and  also  a  case  from 
Dallas,  lo  slow  iluit  "ho  vendor  of  lands  not  bis  own  at 
tiie  time  of  sale,  is  liable  to  r.  Innd  III'  |itiiclrase  money. 
Tlie  mil  IS,  that  be  uho  is  giiiliy  "f  a  wrona:,  shall  tiiko 
tlie  consequences  of  it — ■,<m\  ii  must  be  ailiiiitted,  tbai  in 
seizing  anil  selliiiij  llif  lands  in  qneslion,  the  Sheriff  «  as 
guilty  of  a  wrong;  the  consequences  wlierenf  liaxe  been 
piTJiidicial  to  the  Plaioiiff.  who  lia^  birn  dr;iwii  in.  to 
part  with  bis  money  foe  noibing,  and  In'-  llnoiigli  thr; 
mi>condiicl  of  the  Slienff.  Had  he  not  wiongfiill>  seized 
and  sold  the  land,  the  I'lainlitt"  Would  not  havi:  been  dc- 
cei\ed,  nor  would  have  parted  xviih  bis  money  as  he  did. 
Davie  for  Difn  dani — The  piiircijili'  that  be  who  has 
paid  inoiiej  upon  a  consideration  which  fails,  shall  reco- 
ver it  hack  of  the  icceiver,  is  a  good  one  ;  but  it  is  not  to 
he  understood  in  the  latitude  tlie  PlaintilT's  counsel  as- 
signs to  it.  He  who  has  received  inoin-y  in  liis  ouii  i  iglit 
and  to  bis  own  use,  upon  a  consideration  which  tails, 
ought  to  refuinl  it  ;  and  an  action  to  compel  him  to  re- 
fund, is  sustainable  :  but  if  he  acts  as  agent  or  trustee  for 
another,  or  as  a  putilic  officer,  and  leceives  the  money  for 
a  third  persim,  and  pays  it  over,  lie  is  not  liable  to  refund. 
A  contrary  doctrine  would  destroy  all  agencies,  attorney- 
ships, and  otlices  suhjeci  to  the  operation  of  it.  These 
persons  are  noi  benefited  h^  the  receipt  of  the  money — 
they  I'eceivc  it  for  otiiers — they  are  iin-re  iiistriiments, 
whereby  the  money  is  delivered  from  the  bands  of  one 
party  into  the  hands  of  the  other;  it  is  deposited  with 
them  for  the  use  of  another.  The  cases  cited  by  the 
Plaintiff's  counsel,  and  all  other  <'ases  upon  the  same  sub- 
ject, extend  onlv  to  support  the  action  against  a  receiver 
of  mone}  to  his  own  use — that  \»'as  tin-  case  cited  from 
Burrow — there  the  Defendant  received  the  oioney  to  his 
own  use  ;  thai  was  the  case  of  the  annuity — the  Defend- 
ant h.iil  received  the  money  to  his  own  use.  The  same 
remark  pplns  to  the  case  from  Dallas.  These  authori- 
ties lb.  reinit  iiM'  i.ot  applicable  lo  iiie  ju'esent  case,  wliich 
is  thai  of  a  Sheiiff,  w  hii  has  received  inone^  for  the  Plain- 
tiff in  the  action.    This  action  cannot  be  supported  by  a- 


HAYVVOOD^S    REPORTS. 


569 


iiy  adjudication  to  hi-  fouinl  in  the  bonks;  al(liotia:ii  occa-  ^^P-  '''^^• 
sioiis  of  iTStiiMiiia;  to  stirli  an  uciioii,  vvitp  it  in.iintaiiia-  •^^'"^'^''^ 
blc  li.ivp  iirriiricd  nlmost  cvi-ry  <liiy  f'r  liiiiidn'ds  of  years.     C'*^'*) 
T()is  of  itsi'lt'i-ia  s'tom;:  ari^iiincnf  ai^ainst  ilie  pri'st'iit  at- 
tempt.     TliiTe  are  iiiaiiy  caS'S  wliicli  dccidr,  tliai  an  a- 

[  ,qi'ni  is  not  liable  I'm-  monies  rcc  eived  to  thi'  use  of  bis  prin- 
cipal, and  |i;iid  o\ci'  befiii-e  ;in  action  coitiiiienced  against 
liini — Bullerv.  ffdrrison,  Cowp-  5'j6,  is  one.  I  admit  the 
Sbci-ifl"  is  lialile  to  an  action,  if  li--  levies  bis  eX'  <;ntion  up- 
on llie  pc  ip.Mty  of  any  other  ih.tn  the  DrfendaMf :  tiat  is 
to  say.  in  the  i-ase  of  personal  prc)|)erty.  Biit  iv  is  t(inal- 
ly  trnc,  111  it  be  is  n  't  liable  for  levyiti;^  on  the  lands  of 
anotber  than  the  Defendant  ;  because  the  lands  are  not 
to  be  removed  out  of  the  possession  of  the  occupier,  and 
delivered  m  the  vendee,  as  personal  propei'ty  is.  Wlieri 
lands  ai'e  sold,  the  SberifF does  not  deliver  p(<ssPssioii  to 
the  \cndce — be  must  olitiiin  th  U  by  actif)n  or  olhei-  law- 
ful means.  Tiie  Sheriff  need  not  even  make  a  seizure  of 
lands  in  order  to  a  sale:  that  «as  deciil  •(!  some  years  a- 
go  a'  Halifax,  in  ihc  case  of  Baker  and  Long  ;  and  that 
lie  need  notdeliwr  (lossession,  was  decided  in  the  case  of 
V.  J^ichols.  at  HillsboivMii^b.  Therefore  were  the  in- 
ference correct,  thai  because  the  Sliei'ifiF  is  liable  lo  a  third 
person.  Cor  seizinij;  his  (ijoiids  upon  execution  against  the 
Delendant,  he  is  also  liable  to  tiie  xendee.  which  it  is 
not;  yet  as  that  propusilion  fails  in  the  case  of  Imids, 
the  coticlnsi<ni  must  also  fail  with  it — and  so  the  Plain- 
tiff is  not  ontiiled  to  recover. 

Badger  in  re|)ly — 'L'lie  rule  about  refunding  when  the 
consideration  fails,  is  laid  down  generally,  and  is  not  in 
any  book  wiiere  it  is  to  he  met  with,  restrained  lo  the  case 
of  money  reccixcd  to  one's  own  use;  and  as  we.  profess 
to  be  governed  by  I'oimcr  pr  'Cedents,  ^h  it  rule  cannot  be 
now  altered  to  suit  this  case.  There  is  no  hardship  in 
subjecting  the  Sheriff  lo  ibis  action — ,to  do  s<i  will  make 
SlnrifTs  more  cautious.  When  iliey  Know  that  the  inva- 
sion of  auotliei''s  ])i-o(icrly  is  at  their  own  risk,  they  will 
become  careful  not  (o  intermerldle  with  property  which 

'does  not  belong  to  the  Defendant;  ami  then  n-ither  stran- 
gei's  to  the  action,  nor  vei.d.es,  will  he  involved  in  diffi- 
culiies.  In  the  present  case,  the  Siiei'iff  lias  manifi-itly 
done  wrong,  and  the  consequences  are  injurious  to  the 
Plainiiff,  and  justice  requires  a  recompence. 

Per  cnriaiu — Williams  and  H\i^W'jo»,  Ju-.tices. — If 
a  man  receive  money  to  his  own  use  and  to  his  own  benefit, 


570  HAYWOOU'S    llEPOUTS. 

Sep.  1797  upon  ^  consideration  wliirli  liMpjioiis  lo  f.iil,  he  is  liable 
^^"^^"^^  1(1  rcfiiiKl  ;  Ijiit  if  he  ri'ci'i*es  it  as  aa;etir  for  aii(itlior<  or 
(495)  actiiii;  lor  uiiolliei'.  anil  p.iv  it  over,  lii-  is  n<i(  lialilf  to 
iifiiiid.  It  may  not  be  so  .-xpressly  lai  I  down  in  any 
one  lasi'  in  tin-  books,  wlific  iiic  i-eceiver  to  bis  own  n.so 
issued;  but  that  iliis  js  (III- law,  may  easily  be  asrer- 
taini'd  by  a  coniiiarison  of  the  cases,  uhere  a  rrreivt-r  to 
his  own  ose  is  surd,  with  tlio^c  wliei-c  the  Defendant  has 
been  sued  as  agent,  o;-  the  liii;-  ;  the  Case  in  Cowper  de- 
cides, that  he  is  not  lialih*  when  sued  as  an  a.^eni.  Ano- 
ther Wi  II  known  Case  is.nhere  letters  of  .idniinistr.ition  ain 
obiaiiied.  and  the  adniinistraior  apfioinls  his  atioiney,  who 
receives  money  ami  pays  lo  'he  a'lministi'ator,  and  ttieii 
th'  leiteis  are  repealed  .itrd  gi-anted  to  the  next  <if  kin, 
and  he  sues  the  at'oim-y — die  attorney  is  not  liable  to 
his  action — this  goes  npmi  the  same  pi-inciple.  Another 
case  cuniing  veiy  near  tin-  picsent  is,  where  the  execu- 
tor sells  a  term  for  years,  which  he  supposes  to  be  the 
testator's,  and  tloMendi'e  is  ejecied  by  Jndgnietit  and  sues 
the  execntor — lie  is  nut  liable  ;  heciinse  he  may  iiavi'paid 
over  the  monies  to  creditors  oi  legatees.  Doh^'.  654,  656. 
I'he  reason  of  thesf  cases  j^overns  that  of  a  Siiei-ifll'  sell- 
ing land  by  virtue  of  an  execiiiion — lie  re(!eives  th-  money 
not  to  his  own  use.  but  to  ihe  use  of  the  Plaioiilf  in  the 
action  ;  «lien  he  has  paid  it  over  he  is  not.  liable  ;  lor  if 
he  lie,  liow  is  he  to  Ite  reeompi-nsed  ?  lie  cannot  recover 
back  of  ilie  Fiaiiililf— tlie  Siierift'is  not  bound  to  warrant 
the  property,  for  he  is  no'  betii-fited  by  tlie  money  as  a 
pii*  ate  vendor  is.  No  Sn  rilf,  executor,  or  the  like. 
Would  ever  be  sufe,  were  they  bound  to  warrant  the  pro- 
perty sold.  They  frequently  have  not  the  means  of 
knowing  svhethei-  tlic  title  he  j;ood  or  bad.  Theii- estates 
would  be  perpeitially  in  danger.  The  property  sold, 
n)i.i;h'  at  any  distance  of  time  alter  Ihe  -.ale,  he  rcco\ered 
of  the  \endee  or  liis  lieiis,  and  the  Sneiilf  become  liable 
thereliy.  N  >  man,  under  such  disadvantages,  WDuld  be- 
come agent,  CM'cutor  or  SiierifT.  Tlie  doitriue  contended 
for  by  the  PlaintilT,  in  iiie  pi'esent  aclimi,  would  destroy 
all  siieh  agencies  and  otlict  s,  bi'uelicial  as  they  are,  to  the 
public.  It  does  not  l'ollo\\,  beiause  the  Shi'iff  is  liable 
to  a  strangec  for  selling  his  personal  elfects,  iliat  he  is 
also  liable  to  1  lie  vendee  ;  but  if  it  did,  'lie  argument  fails 
when  applied  lo  land> — 'lie  SnerilF  is  not  hound  lO  seize 
them — ^iaiids  do  not  pabs  ah  pursuaal  estate  does,  by  sale 


Haywood's  reports.  571 

and  (lolirnry.     MoM-iilihs  av-  seizHd  in  order  to  tlipir  de-  Sep.  1797. 
livcfy.     Tlu'ip  is  no  ornisioii  1o  siize  laiiils  ('or  iliesHiie  ■^^"""^'^ 
puiposc — wh '11  sold,  tlipy   need   not  be  dflivored   to   itie 
vendee — the  Slii'i-ifT  Cittinoi  expel  tin-  p'-sscssor  and  put    C^yoj 
the    vrndee    irit"  ixisse^sioti — ntid   thi'i-eforp,   the  Sheriff 
is  not  liable  Cor  selling  tlie  lands  of  a  stianirei'  to  the  ex- 
ecniion.     The  dispute  lies  in  soch  cases,  heiwcen  the  ven- 
dee and  the  rlainiants.     The  vendee  purchasis  at  his  own 
risk.     The  ShetifTis  not  snbjeit  lo  the  claimant's  action, 
the  conclusjoti  drawn  from  his  liahiiiiy  in  rases  of  per- 
sonal property  fails.     We  aiecleai-l>  ofoi.inion,  tlie  jne- 
seiit  acrion  cannot  be  sustained.     Verdict  and  judgment 
for  the  Defendant. 

Witlicrspoon  and  Wife  v.  Blanks. 

Fer  curiam — Wihiams  and  Hatwoou,  Justices. — If 
a  litn-  be  to  terininUe  at  a  niitiir.il  !>onndar_v,  as  a  nionn- 
tain,  pond,  rock.  <^c.  and  the  di--tanie  is  roniplefed  be- 
fore arriving  at  it,  still  the  liu'  must  be  continued  on  till 
that  natural  boundary  be  intersected.  Also  if  a  natural 
boundary  be  mentioned  in  the  patent  or  deed  as  ter-mioa- 
tirig  a  line,  and  the  coni-se  c.ilh'd  for.  goes  beside  tiiat 
jioint,  the  course  siiall  be  corrected,  and  such  a  course  ta- 
ken, as  leads  directly  to  it  fr  in  tlie  last  termination,  [n 
such  Case,  tlnre  is  as  much  |-eason  fir  (lisregardi"g  ^he 
course  described  in  the  deed,  as  thei-e  is  for  disi-eg^id^ig 
the  measurement  or  leng'h  of  tlie  line  as  descr'ibed  there- 
in :  but  in  this  case,  eilher  line  lerminated  at  a  natural 
boundary,  which  niigiit  be  that  mentioned  in  tlie  piicut; 
and  there  being  evidence  in  favor  of  bo'ii,  the  jmy  fiuud 
for  the  Defendant.  The  court  however,  granted  a  new 
trial. 

Note. — ViJe  note  to  Bradford  v.  //('//,  ante  22. 

Foreman  v.  Tjson. 

Stale  pfrants  cannot  be  avoided  by  eviikiice  in  ejectment,  recourse 
must  be  liud  to  Eqiiiiy  toi  thit  purpose.  Where  two  paie  s  I)  _nr 
liu  s  line  dale,  Haywood,  Judge,  thought  t'le  prority  of  um  ler 
miglit  d.  cide  tile  pret.  rence  in  the  absence  of  oiher  proof ;  but 
Williams,  Judge,  contra. 

Ejectment.  And  not  guilty  pleaded.  On  the  trial, 
Fore/ii«?t  p>  'diKied  ill  cvidince  a  St  ite  tcrant,  died  the 
3 1st  uf  October,  1782,  to  one  James  Lanoir;  and  tltes 

72 


572  Haywood's  reports. 

Sep.  1797  flpdnred  the  title  lej^iilarly  to  himsi-If.  The  Defendant 
^'^'^'~>^  also  rifoilucr-d  a  strain  for  tlie  sainf  land,  dated  on  the 
same  day — iher'-iip.iri  the  PlaintiflF  stated,  and  offered  tr» 
prove,  that  Tyson's  sraiit  was  ohiaineil  against  the  pro- 
visions of  the  rtc(  of  1777,  c.  1,  sec.  9,  which  declares  all 
titi' s  ol)taii'ed  other  wise  than  accurdin.^  to  thedirertions 
of  thai  art,  to  hi'  void. 

Davie,  for  the  Defeodaiit — The  decisions  of  our  courts 
ever  sioct-  ilie  act  or<J777,  iiave  heen,  that  grants  nnder 
sucli  circtiutstances  sliall  be  avoided  in  a  Court  of  Equity, 
not  indeed  by  re|)ealing  the  grant,  but  by  decreeing  the 
grantee  lo  convey  to  him  who  should  have  had  the  title; 
(497)  tli'cse  decisions  will  govern  the  present  case,  and  operate 
to  th    I  eji'Ciion  of  the  testimony  offered- 

Baker,  foi'  the  Plaintiff — Wherever  an  act  of  Assembly 
det  lacrs,  that  a  deed  obtained  undei'  particiilai'  circum- 
stances, shall  he  void — a  deed  obtained  under  such  cir- 
ctioistances,  is  absolutely  void  to  all  purposes  ;  and  there 
need  itot  be  an>  direct  judgment  to  make  it  void.  It 
may  he  ohjecied  to,  and  its  invalidity  shewn  wiienever  it 
be(  omes  material  to  shew  it  in  an>  action  whatsoever. 
And  he  cited  2  Term  604,  515,  561,  568. 

Diivie,  e  contra — Grants  <>f  the  State,  or  of  the  King  in 
Eiiiiliod,  are  of  record,  and  cannot  be  avoided  but  by 
something  of  as  high  a  nature — therefore  it  is,  that  in 
England,  a  judgment  must  be  pronounced  against  them 
upon  a  sci.fa.  brouglit  to  repeal  them,  before  they  can  he 
deemed  invalid.  They  are  like  judgments,  valid  in  law, 
till  repealed  by  couil)i'tent  authority.  But  if  the  cause 
of  the  invalidity  ot  a  grant  appears  of  recoid  already, 
tlieie  is  no  occasion  for  a  sci.fa.  and  the  I'oiiei  may  pro- 
ceed lo  vacate  by  judgment  without  any  verdici  upini  the 
sci.fa.;  and  fin-  this  he  cited  4  Com.  397.  In  the  present 
case,  no  cause  of  invali'liiy  .appears  of  record,  and 
thi  grant  is  valid  and  cannot  be  avoided  in  this  action  by 
pa>ol  testimony. 

Haywood,  Justice — Were  this  res  integra,l  should ba 
of  o|iinion  that  such  evidence  as  is  now  offeied,  ought  to 
be  received  ;  and  this  opinion  would  be  founded  as  wellj 
upon  the  act  of  Assembly,  as  upon  the  common  law. 
The  act  says,  a  grant  issucil  u  ider  certain  cir<  unisiances 
sh.ill  be  void  ;  it  is  now  said,  and  I  beliexe  pro|ierly,| 
that  Equity  will  not  repeal  the  grant.  The  sci.  fa. 
sues  III  England  from  the  Court  of  Chancery  un  the  In 


Haywood's  keforts.  573 

i»iilp,  and  is  retiu-iied  into  that  roin '  fi>r  Judgment,  after  a  Sep  1797. 
trial  u|ir)ii  ilic  issiif  of  fact  in  the  King's  Bench — ov  in  •^"^'^'^^ 
case  of  a  fifmtiirer,  judgment  is  giv.n  by  (he  Cii.iticill.ir 
without  sending  the  recin'dout  'if  hiscom-t  «t  nil.  It  wmild 
seem  to  folhiw  from  In  nee,  that  asci.fa.  to  lepi^iil  ;i  grant 
could  not  issue  from  this  court,  ami  if  it  cm. not,  iliere 
remains  no  othci-  mode  of  avoiding  the  gi-ant,  but  by 
shewing  its  invalidity  in  an  action.  It  is  e\iilent,  the 
act  of  Assembly  intended  that  tlie  grant  should  be  avoided 
in  a  Court  of  Law  ;  for  at  thi'  time  of  passing  the  act  of 
irrr,  and  for  five  years  afterwards,  no  Couri  of  fclquity 
existed  in  this  State.  With  respect  to  the  coiniimn  law, 
I  have  no  diiubt.  but  that  such  evidence  might  be  rcdivid; 
tJie  authorities  cited  at  the  bar  proxe  it  ;  -.md  thi're  is  a 
case  of  ejectment.  10  Co.  Re-  109.  in  which  therlTcrtofa  (498) 
grant  was  axoided  by  evidence  gixen  to  the  jury  to  shew 
its  invalidity.  There  ai-e  other  cases  in  trespns',,  and 
other  actions  reported  by  tlie  same  author,  where  giants 
Coming  incidentally  to  be  examined  before  the  court, 
were  atoided  upon  testimony  given  to  the  jury.  There 
are  two  ways  at  common  law  of  inipeachifig  a  grant ; 
cither  upon  a  trial  at  law,  wheie  the  validity  of  (he  grant 
Comes  in  question,  or  where  the  party  likely  to  be  preju- 
diced by  it,  and  ap|)rcbending  a  loss  of  evidence  t'  piove 
its  invalidity,  brings  a  sci.fa.  ,>m\  obtains  judgment  of 
cancillation  and  repeal,  and  so  destroys  the  giant  itself; 
but  there  is  no  use  of  the  latter  proceeding,  where  the 
evitlence  to  counteract  the  grant,  is  as  permatient  in  its 
nature  as  the  grant  itself;  that  is  to  say,  where  the  evi- 
dence is  of  record.  But  tliotigh  tiiis  would  have  been  my 
opinion,  had  no  decisions  taken  |)lace  in  our  court.  I  can- 
not now  but  consider  myself  bound  by  thuse  adjudications 
which  have  been  made  ;  it  is  bettrr  to  adhere  to  them, 
tlmn  to  render  the  law  uncertain  by  contrary  decisions.  I 
must,  ihereffoe,  yield  to  the  authority  of  the  decisions, 
though  I  cannot  concur  with  the  reasons  which  have-bren 
given  fur-  them. 

Judge  Williams — I  am  satisfied  with  tlie  former  de- 
cisions :  I  have  heard  many  arguments  upon  this  ques- 
tion, and  I  am  every  time,  more  and  moie  strengthened 
in  the  opinion,  liiat  the  former  adjudications  are  proper. 
To  avoid  a  grant  upon  parol  testimony,  would  be  dread- 
ful indeed  :  the  most  valuable  estates  might  be  oyeriurn- 
cd  by  oncor  two  corrupt  witnesses  at  any  time.     It  is  far 


574  Haywood's  bepohts. 

Sep.  1797  beffer  to  reject  such  ti'stimony,  than  let  in  such  an  evil 

""^"^'''^^  with  it.     S    (lie  I'videiicc  whs  rejected. 

General  Davie  for  the  DifiMidrtiii  (  the  evidence  being 
closed)  insisted,  that  tlie  Defendant  being  in  |iosaessii)ii, 
cannot  be  de|>rived  of  it  legally,  but  by  the  PlaintifT's 
siievvins;  a  heUei  title;  which  in  thf  pnsent  case  he  has 
not  shewn — his  gi'ant  is  of  the  same  date  «ith  oni-s.  \s 
to  the  number  of  his  grant — that  indeed,  is  of  an  eai'lier 
nnmlver  than  oiiis,  but  the  nuinb'T  of  the  giant  is  a  cir- 
cunisiance  of  no  niaieeiality.  Tbe  Secretary  was  exa- 
mined m  this  cause  last  term,  and  he  said  the  number 
was  .>f  no  conseqiieine  in  detri  iniuing  th»"  priority — that 
the  course  of  the  office  was,  to  make  "Ut  the  deeds  for  ex- 
ecution in  the  Secretaiy's  offict-,  and  send  tin  m  in  a  bag 
or  box  to  be  executed,  when  they  aie  signed  by  the  Gov- 
ernor as  they  hap'jen  to  come  to  h;\nd  ;  after  which,  they 
(499)  are  returned  to  the  Secr-etary's  office  all  togi  tlier  in  a  bag 
or  box.  and  recorded,  and  nnmhered  as  they  are  record- 
ed. The  course  of  the  oflice  is  to  be  regarded,  in  like 
manner,  as  the  course  of  business  in  mercantile  ti-aisac- 
tions — and  if  it  be  to  be  regarded,  then  it  is  evident  the 
circumstance  of  numbering  the  deeiU,  is  immaterial  in  a 
que-tinn  of  |)riority.  It  is  not  required  by  any  law  ;  it 
Mas  introduced  into  praciice  to  facilitiite  busiirrss  in  the 
Secretary's  office.  Mrn's  titles  are  irot  to  be  decided  by 
rei  urrence  to  circumscances  so  trivial — they  cannot  be  re- 
gardetl — and  then  there  is  nothing  to  deteiiniire  the  pri- 
ority, the  court  having  rejected  that  of  the  priority  of  the 
survey. 

Baiter  for  the  PlaintiflT — The  date  of  the  grant  is  what 
has  hitlrerto  been  adopted,  as  the  rule  of  <leciding  upon 
the  poiirt  of  pieference  ;  that  fails  in  the  present  case, 
and  wemirst  necessarily  i-ecnr  to  some  other  circumstance 
or  leave  the  point  iindecidt  d — and  the  parlies,  to  en«lless 
contention.  The  number  proves  tirat  the  deed  first  num- 
bered, was  that  which  was  fir'-t  i-ecoriied  ;  aird  recording 
is  the  circumstance  whiih  finally  coniph'tes  the  grant.—  . 
Tlie  priority  irf  the  number  in  our  grant,  is  theiefiie  a 
prnif  ihat  It  was  complete  before  lire  other — and  of  <  oiirse 
the  lirle  fiisi  vested  and  was  complete  in  us.  This  point 
W;i-  decided  by  Jmlge  Ha\w  od.  at  Wilmington,  some 
tiiiii   ago,  iis  I  am  ii^forrmd 

Genrrul  Davie — 'J"he  case  al  N^  ilmington  did  not  de- 
pend upon  this  point — it  was  decided  upon  the  statute  of, 


Haywood's  reports.  ^'^ 

limitations — T  was  rotirorncd  in  it.  As  to  wliat  is  ar-^J]__|* 
giu'd,  that  llie  rproiilji  2;  tde  si'ant  is  flic  ronHj'e'i's:  cii- 
ciiiiistaiirc,  that  is  indiiMl  npcesvarj,  l)Mt  is  nf  ii.t  wi'iijlit 
in  ileciding  piioriiy  of  oxeriiiinn.  'F'lie  tcrant  or  ilecd 
wiien  rcciiidcd.  lelafrs  t<i  ihf  date — 'lif  ruiiinion  rasi-  of 
dt'pds  of  ba'^iiiii  and  siile  pi'iives  'liis.  !f  twi- de-ds  for 
tin-  same  land  !ic  g-rai'ted  to  l\^;>  diftViont  pc  rsims.  iid 
thf  doed  of  (he  latter-  date  betiist  leiristpred.  'li-ti  will 
not  defeat  the  title  oftlie  (iis!  Iia  .u;;ui)ee — hut  hisdtid  nf- 
teiwai'ds  lerorded,  sli.dl  rela'e  to  the  date  Ihei-iof.  -.iiid 
give  him  the  preference.  The  time  of  recoi-diiicj  thei-e- 
fot'P,  is  immaterial. 

Per  curiam — The  jurv  lia'l  bettei-  s;ive  a  special  ver- 
dict that  the  lnw  njion  this  point  m  'y  lie  settled  ujmn  a 
ilelihei-ate  derision.  /?^  per  Jndire  H^ywooij — 1  am  in- 
clined to  think  th^  piinritj  orniimhec,  is  nf  s-ome  wei.^ht 
in  th'-  decision  of  tliis  case.  It  will  not  do  to  say  incase 
of  two  ,a;iaiils  of  etinal  date,  that  he  shall  prevail  who  is 
in  pussrssion.  It  should  he  decided  Ity  some  ftil(>  more 
satisf.ict'oy.  In  cdmrnon  cases,  the  date  of  the  i!;i"iot  is  (500) 
resorted  to,  althonjirh  It  is  |d.<in.  tliut  e;ives  no  ccitain 
proof  o(  pi-iority  of  execution  :  for  ijie  .e;i''iits  ate  in^de 
out  ready  for  execnlion,  aiid<lati(l  a  lon^  time  bcf.np  the 
actual  execution  takes  place.  In  fact,  as  the  (grants  are 
sent  in  large  numbers  to  the  Governor's  Secretary  to  be 
exenited.  and  are  execiitetl  as  they  hapjien  to  come  to 
hand,  it  may,  and  no  donut  frerjoently  dues  ha])peii  in  fact, 
that  a  deed  of  latt«  i-  dale  is  fiist  executed.  Or  sopiiose, 
they  a-'P  d;ited  by  the  Governor's  Secietary  tis  they  come 
to  hand,  afier  the  execution,  siill  it  may  happen,  tlial  a 
deed  first  ixeculed,  may  he  the  last  dated.  But  as  snme 
circnmsiance  must  be  taken,  the  courts  have  adopted  that 
of  the  date — and  where  th;it  is  found  not  to  answer  the 
purpose,  some  other  circumstance,  by  parity  <d' reason, 
should  be  resorted  t",  and  [priority  of  nuuil)er  is  some 
evidence,  thoui^h  not  conclusive,  that  the  deed  which  has 
that  circumstance  in  iis  faNor,  was  fust  dateti. 
'  The  jury  found  for  the  Plaintiff",  and  a  tievv  trial  being 
moved  fiir.  Judge  VV  illiams  was  for  granting  it  ;  hut 
Judge  Haywood  would  not  tmw  deliver  auopiuion  up- 
on the  motion,  saying,  a  Stale  grant  might  be  suspended 
at  any  tiuiv-,  before  it  was  enrdllid  —  whii  h  proM-d,  ihat 
before  eoroiment,  'be  grant  w-.is  not  complele  ;  and  this 
differed  from  the  case  of  the  cmolriunt  of  a  deed  of  bar- 


Haywood's  iiepokts. 

Sep.  1797, 

,^^_^^^^*  gain  and  sale,  whirh  could  not  he  prcventeil  after  tlie  cx;- 

t'Ciitiiin — that  tlie  piiirit  flesei-veil  coiisiderHlioii,  and  Im 

would  ('ndHa\rtf  to  form  an  npinion,  when  it  should  be 

argued  hcrcaftci-  upon  this  nioti<in. 

NoTB—  As  to  the  firs'  point  riilid  in  lliis  case,  see  Reynolds  v  Flinn, 
and  ihe  note  thi-reto,  ante  106.  Up'  n  the  \&>t  point,  see  Andrews  v- 
JHulforil,  ante  311,  and  MiildirZ-  &  Wife  v.  Leg^et,  3  Murph.  539. 

Annn^mnus. 

when  a  Defendant  in  ejectment  dies,  the  suit  will  abate,  and  cannot 
,  be  revived  by  sci.  fa.  against  the  heirs. 

Ejonnifnt.  The  Di'fen<lant  died  pending  the  action, 
and  a  sci,  fa.  issued  a.e^ainst  his  heirs,  who  came  in  and 
pleaded  the  death  nf  tlie  Di'l'endant  m  :ihnteinen>.  Et  per 
curiam — Wiihams  and  Hatwooh.  Justices. — I'lie  acts 
for  coMlinning  snits  on  the  deaMi  i«f  eiiher  |mrtv.  extends 
only  to  such  cases,  wiii-re  hef)ie  the  act,  tiie  executors  by 
a  new  suit  inis''t  sue,  or  be  su';d  iifier  the  ahatiinent  of 
the  former  action,  not  to  those  cases  where  after  Ihe 
abatement  by  death,  no  new  soil  could  he  tnaintaiiied  by 
or  against  them.  The  intent  ol  the  act  was  te  save  the 
expinces  of  an  abatement,  «nil  the  delay  i  onsequent  njion 
it  ;  ;ind  as  ejeciment  In-fore  tin-  act,  abated  li>  the  death 
of  the  Defendant,  and  could  not  be  su|>p')i'led  ag.«ii>stex- 
ccutois  Of  heirs,  for  the  ousier  in  the  lifeiiine  of  the  de- 
ceased, it  vNill  abate  siticc  the  act  in  the  same  manner  a» 
before.  The  act  ne\er  meant  'o  subject  executors  or 
heiis  to  at  tiotis,  which  the)  were  not  liable  to  before  the 
act.     So  the  action  abated. 

Note.— This  is  aliened  hy.the  act  of  1799,  Rev.  c.  532. 

Carruthcrs  v.  Tillman. 

(501)  This  was  an  action  on  the  case  for  a  nuisance,  and 
ovcrtlowing  Ihe  lands  of  the  PlaintifT,  by  erecting  a  mill- 
dam  ;  md  evidence  vvas  gi»rn  of  overflowing  about 
thirty  or  forij  acres  of  low  land,  which  before  the  erec- 
tion «a*>  nsiially  ovifilowed  at  high  water. 

Percurinm — Willi a.ms  and  Haywood,  Justices — This 
action  lies  for  any  ovrrflow  ing  of  thr  Plaintiff's  land,  the 
tnaxiin  being,  you  must  so  use  your  own,  as  nut  to  pre- 
judice another's  pro|ier'y  ;  but  the  action  may  be  con- 
tinued from  time  to  time,  till  the  Uefendant  is  compelled  to 
abate  the  nuisance;  every  continuance  thereof  after  a  pre- 


HAYWOOD'S    REPOUTS. 


577 


ceding  action,  beiiii!;  considered  as  a  new  election — the  ^j^.,-,' 
first  action  is  ic^u-ded  as  a  trial  of  tlie  qtirstion,  whetliff 
a  niiisaii(;i-  -r  dot — theietoi'e  it  is  not  |n-o|K-i-,  in  the  fiiNt 
instanci',  to  give  exeinphicy  daiiia^es,  but  surli  only  as 
will  coin|)iMsate  for  actual  Iiss,  as  kiiiin.i;  tin-  timbec  oP 
ovei'flovv ins;  a  field,  so  as  lo  pi'evciit  a  cto|i  being  m.idc 
111)1111  it,  and  thi-  like.  But  vvhetv  tlie  abating  tbe  nui- 
sance will  resioi'f  tin-  lands  to  the  same  \aliie  and  nse  as 
before  the  nuisance,  md  no  i'<'al  loss  has  fx-eii  as  yet  sus- 
tained, ilic  dain.iges  should  bo  small  ;  but  if  after  ihis  ihe 
nuisaiici'  should  be  coiilinned,  md  a  new  action  beought, 
then  the  damages  siiould  be  so  exeuip!  iry  as  to  coniiiel  an 
abaleineni  of  lue  luiisance.  There  was  a  verdict  for  the 
PlaiiUlflT,  and  six-pence  damages. 
Note  — Tirfe v.  Deherry,  iiiil  the  note  thereto,  an<e  248. 

Den,  on  the  demise  of  Faircloth  v.  Ingraham  and  Jones. 

"Ejectment,  and  not  guilty  ple.ided — atid  the  jury  be- 
ing sworn,  the  Del'iMidant'M  ciunsi'l  disclosed,  that  the 
demise  laid  in  tbe  dei'laraii.in  was  expired,  and  moved  for 
a  nonsuit;  insisting  thai  though  tlie  demise  might  he  a- 
inendcd,  if  prayid  Uefoie  the  jury  are  sworn,  it  couid  not 
be  done  after%vai(ls. 

Per  curiam — Williams  and  Haywood,  Justices. — 
The  demise  is  a  mere  tioiioii — the  jury  are  not  sworn 
upon  that,  but  tu  try  the  title  only.  It  may  be  amended 
at  any  time,  or  the  exieption  may  be  overioiiked,  as  it 
■was  ill  2  Burr.  1159,  where  the  demise  after  the  trial  was 
fniiiid  to  be  laid  upon  a  time  not  yet  come.  The  nonsuit 
was  refused. 

Note.  —  Tjife  Toun^  v.  Erwiii,  ante  323.     Jlilams  on  Eject.  203,  204. 

Burrow  v.  Sellers'  Executors. 

The  Defendant  pleaded  in  abatement,  that  there  were 
I  other  executors  nut  naiued  in  the  writ. 

Percuriam — Williams  and  Haywood.  Justices.    The    (502) 
I  plea  is  bad — it  -stionid  nave  stated  iliai  Hiose  other  execu- 
tors weicqnilified  asexeiuors,  and  took  upnn  themselves 
the  burtli  -1  of  executing  '.he  will,  as  si.iied  in  ih-    Office 
of  E,xecntars,  42,  43.     The  plea  was  overruled. 

Note.  — nrfe  Tuller'3  Law  ofExemiors,  471.     Chilli's  Pkarf.  38. 


IIAYWOOU  S   UEPORTS. 

Bli)iiiit  V.  Fisii. 

This  was  a  qui  tarn  artJDn.  Tlie  Defendant  had  died 
pendiui;  tlie  action.  Et  per  curiam — The  art  continues 
no  suit  xNliicli  bifore  tla-iictwas  not  maintainable  against 
executors  ;  and  as  iliis  action  before  the  act,  would  have 
abated  by  the  deatli  of  the  Uefendaot,  and  couhl  nit  have 
been  afterwards  commenced  against  his  executors,  it  is 
abated  now.     The  action  ab.ited. 

Note.  —  Ficfe  sime  point  decided  in  the  case  of  Smil/i  v.  Walker's 
Ec'rs.  2  Car.  Law  Sep.  245. 

McKenzie  v,  Ashe. 

The  Defendant  liad  agreed  to  run  his  mare  against  a 
horse  of  ihe  Plaintiff's  and  to  p  ly  one  thousand  dollars 
if  he  lost  Ihe  race,  or  to  pay  four  hundred  dollars  if  he. 
failed  lo  run  at  the  day  and  place  appointed.  His  m  ire 
became  by  accident  lame  before,  and  continued  to  be  so 
on  the  day  of  the  race,  and  died  in  two  days  after.  Two 
witne.sses,  the  on!)  ones  examined  lo  thatpoinu  said,  that 
such  accident  by  the  rules  of  racing,  could  not  excuse  the 
Di'fiidant  from  the  forleilure. 

Per  curiam — Whatever  the  rules  of  racing  deride  in 
such  a  rase,  should  be  the  standard  of  derision  now  ;  the 
ruh'  of  law  being,  that  if  he  is  entitled  to  the  penalty  by  the 
rules  of  racitig.  he  is  so  by  law.  The  jury  were  divided, 
and  a  juror  withdrawn. 

Note, — Upon  enquiry  atler  Ihe  trial,  several  persons  well  experi- 
enced in  racing',  gave  it  is  iheif  decided  opinion,  that  no  :iccid''nt 
whatever  could  exenript  the  Oelend  nt  from  tlie  forteilur.-  in  cuse  of 
failure,  unless  he  had  c.xpre'^sly  provided  :i«aiiist  it  bj  his  a);reement. 

NoTK. — Vide  McKinzie'a  Jldmrs.  v.  Jls/ie,  2  Hay.  161.  Hunter  v.  Bi/- 
num.  Ibid.  354. 


INDEX. 


ABATEMENT. 

1.  The  objci-.ti  111  tliai  a  joint  obligor  is 
not  siud,  must  be  maile  b\  plea  in  a- 
batemcnt  al  ihtr  prupcr  time  ;  it  can-  3. 
not  be  made  at  the  Inal  ut'tlie  cause. 
Such  a  plc::i  cimnoi  be  made  at  all  ^.ince 
the  act  uf  ira9,  ch.  57.  v.  Ke- 
nan s  adm'rs.  216 

2.  It  :t  pla.iiiitt'  prncures  a  cop)  ot  his 
bill  and  a  subpoena,  and  deliver  them  4. 
to  the  Siientt  iM  lini  to  iir  s  rv^d  on 
the  defendant  len  dajs  befoie  tlieterm 
anil  the  slieiiff  negk-ct->  tn  make  the 
service  until  ten  days  betme  the  next 
term  after  that,  the  plaintiff's  bills  lall 
not  be  dismissed  by  a  plea  in  abite- 
meiit  under  the  act  of  1782  cA.  11,  sec. 
a.     Anonymous,  2a6 

3.  Uiuk.  (lie  acts  of  1777  c/i  2,  sec.  10,  5. 
and  1793  c/i.  19,  sec.  1,  it  is  held,  that 
a  plea  Ml  abateiiiciit  is  not  the  proper 
mode  to  lake  advantage  of  tne  I'lain- 
tiff  's  having  bic.ught  Ins s.iit  in  the  Su-  6. 
pei'ior  Cou  t  lor  less  vilue  iha a  filiy 
pounds.  Sur.  Paris,  of  McNaugldon 
&  Co.  V  Hunter,  454 

4.  A  plea  in  aliatement  that  the  planiiift" 
is  .11  alien,  is  not  sU!-t ainable  <n  Hie  ac- 
tion of  vr^  spass  quare  clnusnin  frtgit  — 
JBarges,  by  Guardian,  v    Hogg,       485 

5.  Wlieic  a  defemlani  m  ejectment  dies, 
the  suit  will  mate,  and  cannot  fte  re- 
vived by  scire  facias  against  the  In  irs. 
Anonymous,  500 

6.  A  qui  tarn  aciion  abates  by  the  d.-a'h 
of  I  ,e  defendant.   Blount  v   Fisli,  5o2 

7.  A  plea  in  abatement  stating    larely, 
that  there  are  other  execumis  n.it  na- 
m.  d  ill   !ti  •   wrii,  is  bau.     Burrow  v.     7. 
Sellers  ex'rs.  oOl 

Vide  Jurisdiction,  1 . 

ADMINISTKATOUS  ^NI)  EXEC  U- 
rORS. 

1.  Lfttli  rs   of  adniinistiation    need   not 
remain  in  court,  and  are  not  demand-     8. 
able,     after     issue   joined.       Berry's 
Adm'rs.  V.  Putlam,  16 

2.  An  adminis  iji  ■:  may  sue  as  such, 
upon  bis  own  possession:  it  is  better 

73 


for  him  to  sue  in  that  manner,  ns  the 
judgment  will  tin  iiSe  evidence  gainst 
hnn  of  asse's.      Jd.  16 

,  Oiijectel  b\  counsel  that  a  summons, 
an  '  not  a  capiaa,  is  the  pro|  er  pro- 
cess to  tiring  K'  an  adm<nis\rator,  and 
tlia'  an  attachment  founded  upO'  nch 
capias  is  irregular.  Moore  v.  Suttril's 
Adm'r.  16 

.  Former  administrators  removcl  s.id 
another  appointed,  bui  not  m  .d>-  a 
parij  to  ilus  suit.  The  latter  aiimin- 
istrator  .vill  not  he  allow.d  to  plead 
any  thing  m  this  suit,  and  the  firmer 
Hdministraiors  cannot  plead  ihe  repeal 
of  tlieir  lefcrs  afer  the  firs  lerm 
since  the  reptal.  Bailey's  Adm'rs.  v. 
Cochran's  Adm'rs.  104 

,  An  account  stated  and  signed  by  one 
administrator  is  binding  upon  all,  and 
will  bear  interest  from  the  time  it  was 
signed.      Id-  104 

V^  here  .n  executor  declares  as  execu- 
tor, then  he  makes  profcrt  of  his  let- 
ters t  stameiiiary,  and  they  are  tn  be 
objecti  d  to  in  pleading,  upon  oyer  of 
them,  or  by  d  murrer  if  am  o  h  ct 
appears  in  the  declaratinn  ;  and  at  er 
the  first  term,  they  need  not  be  pro- 
duced  a;ain.  Bui  when  an  executor 
declares  upon  his  own  possession,  ihe 
fact  of  executorship  forms  part  of  his 
title,  and  must  be  proved  upon  Ihe 
trial  by  the  iinduolion  of  Ihe  letters 
tetaineHiary  tht-mselves.  unless  they 
have  been  lost,  when  perhaps,  o  her 
pi    of  of  c  xecuiorship   will   be  admit- 

ted    Ex'ra  of  V  Oldham      165 

When  "no  assets"  .re  pie.  d,  ihe 
Flam  itJ' shall  have  ju  Igmeiu  for  the 
amount  of  the  ass  is  which  he  can 
sho«  in  the  han.'.s  of  tli  administrn- 
tor,  and  judgmee  quandof<n  tli.  iial- 
anee  of  Ins  debt.  McBae  s.  Adm'r  of 
Moore.  182 

\\  iicn  an  executor  omits  to  dead 
"  no  assets,"  it  is  an  ailmissio!  o!  aS" 
sets  uhich  he  c.ii  iitVor  aflei  Wards 
coitroven  ;  and  in  sue.,  ci.se  ll.c  pro- 
per jud(;meDt  i«,  thai  the  principid 


•582 


INDEX. 


sum  recovered,  be  levied  de  bonis  tes- 
tatorism  tht- hands  f  lie  rx  cu'or, 
and  the  ceists  de  bonis  propHis  ■•  -nd 
upon  the  lelmn  ot  the  Sheriff  that 
there  arc  no  e^ihhIs  of  the  deceised  in 
the  hands  of  the  executor,  then  a  lei. 
fa.  issues  to  the  executor  tc.  shew 
cause  « l)y  the  execution  for  'he  prin- 
cipal snoiiM  n  t  be  levied  de  bonia 
propriis.     Parker  v.  Stephens.  ^18 

9.  AdministiviiionKrHn.ed  whenthe  "ext 
of  kin  are  out  iif  ihe  couiiiry  s''OUld 
be  durante  absentia,  if  .-tlii  rwisc,  it  is 
errom-ou-      Ritchie  v.  McAuslin,  220 

10.  The  nt  xt  of  kin  residing  in  another 
country  ma\  ap.mint  m  p  rsnn  to  take 
the  Hflininistration  here.     Id  220 

11.  The  court  shoudl  not  grant  letteis 
to  a  person  not  designated  in  the  act, 
belore  tlie  persons  <lesignated  ha\e 
refused      Id.  220 

12.  The  SupfTior  Court  virill  repeal  ihe 
let  ers  when  mpropirly  ^-laiited,  ad 
make  .in  order  for  ih  County  C'lurt 
to  giaiit  ihem  to  the  proper  person. 
Qiiere,  whether  i'  shimid  not  liave 
been  a  munJamiis.     Id.  220 

13.  Suit  commence. I  against  an  execu- 
tor retiirnablv  to  the  Superior  Court, 
and  suits  afterwanis  coinmenceil  re- 
turnable to  the  County  Court  which 
sat  first ;  to  these  la'ter  soils  the  exe- 
cutor put  ill  such  pleas  as  made  the 
assets  re-iponsib'e  for  tlieir  payment, 
and  to  tile  suit  in  the  Superior  Court 
he  plead  tliat  he  had  no  assets  except 
what  was  liable  to  the  ,iavineni  of  the 
other  suits.  The  I  tter  plea  is  not 
good  ;  he  ouK'ht  to  have  confessed 
judgment  to  the  suits  in  the  I'.otiny 
Cour  ,  and  then  plead  i  hose  judgments 
to  the  Slot  in  the  Superior  ('oiirt  — 
Anxinymous,  295 

14.  The  1)1  1  of  pleneitdministrnTit  must 
be  true  wnen  i(  in  put  m,  ud  not  at 
the  time  of  trial      Annnnmous,       297 

15.  The  admin  sirat'ir  liadfuled  lo  plead 
plene  administravit,  or  any  other  plea 
•shewioi,  a  want  of  assets,  and  the 
Pla.iit.fi' had  obtained  jud.'iient  and 
Upon  ix^'ciition  issued,  "nulla  bona" 
had  been  returned:  held,  ihit  ihrid- 
minisiralor  was  bound  lo  pay  de  bonis 
propriis,  iid  for  that  purpose  a  sp.  cial 
ji.fa.  might  issue  tecitin,;  the  relurn 
of  nulia  bona,  ..nd  commanding  the 
Sheriff  to  lcv\  de  bonii  intestati  if  to 
be  found  in  the  hands  of  the  adminis- 


trator, if  not,  de  bonis  propriis.  nogs'* 
Ex'rs  V.  White's  ^ilm'ra.  398 

16.  LuUers  of  administration  grant,  d  in 
another  State,  c:  nnot  entitle  the  ad- 
ministiaior  to  maintain  a  i!tiit  in  this 
State.     ..inonymoua,  355 

1 7.  An  administrat.  .r  is  bound  to  pay  debt* 
alreadt  due,  before  tho«enot  yet  pay- 
able. Evans  v.Norrk'sAdm'ri.       411 

18.  An  administrator  cannot  retain  a- 
against  debts  of  superior  dignity. — 
Id.  411 

19.  Voluntary  payments  after  the  teste 
of  the  writ  are  not  allonable.  They 
are  certainly  not  if  made  after  plea. — 
Id.  411 

20.  A  payment  made  after  the  teste  of 
the  writ  is  not  good  in  s-ppoi't  of  the 
plea  ni' plene  administravit.  Quere  by 
Haywood.'  Sur.  Part,  nf  McNaugblon 
&  Co  V.  Blocker's  Adm'r.  417 

21.  .ludgme  I's  oniained  against  an  ad- 
ministrator after  tile  teste  of  the  writ, 
and  before  the  lime  of  ple.ding.  itiay 
be  ;.lead  at    he  proper  time.  Id.     417   1 

22  Debts  assumed  by  the  administrator  i 
helore  the  teste  of  the  «rii,  must  be 
allowed  him  to  the  amount  of  his  as- 
sumptions.   Id.  417 

23  When  two  judgments  are  obtained 
against  an  administrator,  the  fii>t  an 
absolute  one,  but  the  second  a  guitndo 
judgment,  andasseis.fierw.rds  comes 
to  his  hands,  Hatwood,  .judge,  said, 
th  it  Ihe  assets  must  be  applied  lo  the 
first  Judgment ;  but  Stone,  Ju.lge, 
seemed  clear  tlial  they  should  go  to 
the  satisfaction  of  the  second,  jinony- 
movs,  460 

24.  Wiien  an  administrator  does  not  dis- 
tinguish in  his  inventory  Ihe  good 
from  the  bad  debts,  all  will  be  pre- 
sumed to  be  good,  until  he  can  show 
th.^1  he  brouglit  suits  fortliem  and  the 
debtors  weie  unable  to  pay.  Jinony 
niotis,  481 

25.  I'he  iilea  of  plerte  adminiilravH 
should  be  received  at  all  times,  provi- 
ded the  Oifcnd.iit  does  not  come  in 
with  it  at  a  very  late  period,  to  delay 
the  trial.     .Anonymous,  484 

■Vide  Trover  1  2,  5  6.  Limitations,  «/a. 
tuteof  1  Jbat'-mcnt,!.  Joint  Obligors, 
1,2.  Husband  &  II  ife,3,  4.  'Dttinue,6. 

ADMINI'^inVTION,   LKTTERS   OF. 

Vide  .Administrators  (i   HxeoHlori,  I,  9, 

10,  11,  12,  16. 


( 


583 


ACCOUNT. 

.  The  action  df  accuiint  will  not  lie  for 
a  legatee  aginst  an  executor,  or  (lie 
executor  of  !.ucli  executor.  Anmy- 
moiis,  226 

2.  Wh>  n  to  a  bill  filed,  stating  errors  in 
an  account  s.  ttltd  four  or  five  years 
ago,  ilefcndunt  pieadfd  S|,eci  .ll\,  de- 
n>ing  each  rrror  and  also  all  fraud,  if 
the  Hlaintff  does  not  lak  issue,  and 
prove  the  en  or  or  fraud,  the  c>  urt 
will  not  disturb  tlu  accnunt.  Black- 
leil^e  V.  Simpson,  259 

3.  An  accoun.  liken  by  the  Mastur,  in 
tlie  absence  of  one  of  the  parties  and 
with'iut  his  having  had  notice  of  the 
tinie  when  it  would  he  taken,  ^liall  be 
set  asidi .     Smith  et  al  v.  Estia,      348 

4.  When  a  report  isregularlv  laken  but 
the  it<  ins  of  the  iCLnunt  arc  innpro;  er- 
]y  allowed  or  disallov  cl  by  the  Mus- 
ter, exceptions  filed  to  the  report  are 
proper  :  but  if  the  repori  is  iiTfguiar- 
ly  taki  n,  then  th^  objection  goes  to 
the  whole  repoii,  md  may  be  made 
and  supported  by  affidav'ts  on  motion. 
Id.  348 

Vidi  Administrators  &  Executors,  5.  Li- 
mitations Statute  of,  5.  Favtnent  plea 
of- 

ACTS  OF  THE  ASSEMBLY. 
Vide  Evidence,  12,  14. 

AFFIDAVIT. 

1.  An  indictment  upoi.  'n  affidavit  not 
si|;ned,  is  good.     Stile  v.  Ransom,     1 

2.  An  affidavitolanag.nl,  not  a  party 
in  the  suit,  cannot  be  annexed  to  an 
answer  to  dissolvt  an  injunction  :  but 
an  order  may  be  mad  to  havv  the  fact, 
which  the  ffidivit  was  intended  to 
show,  tried  by  a  jury  at  the  next  term. 
Christmas  et  al.  v.  Campbell  el  al.    123 

,  AGI-.NT. 

Vide  Affidavit,  2.  Evidence,  16.  Part- 
nership, 2. 

ALIEN. 
PlaintiflT  sued  on  a  bond,  and  the  plea, 
which  w.is  founded  on  the  101st  sec- 
tion of  the  act  of  1777  ch  2,  stated  in 
substance,  that  the  Plainiitf  had  remo- 
ved from  the  State  to  avoid  assisting 
in  the  war  of  the  R^^voluti.in  ;  that  he 
had  attached  himself  to  the  enemy  &c. 
Ikld,  that  if  Plaintiff  was  a  citizen  of 


this  country,  the  101st  section  before 
referred  to,  is  re  '■  iled  as  to  him,  by 
several  acts  of 'lu-  State  Lfgislature  ; 
and  'f  he  iia-  not  a  citizen  hut  a  Brit- 
ish sn  ject,  then  by  tin  4th  article  of 
the  ti  itv  1  f  Peace,  he  is  considered 
as  a'l  ali  n  friend,  and  Ciiiitled  to  sue 
ill  our  courts.  Cruilen's  ex'rs.  v.  Netide 
338 
Vide  Abatement,  4. 

■LIMONY. 

1.  In  .1  bill  b)  a  >Mf  for  alimony,  it  is 
mosi  i-ropt-r  that  the  husband  be  held 
to  bail  at  firs  ;  hut  .f  that  has  n' I  been 
done,  upon  proper  affidavits  by  the 
wife,  the  husband's  pioperiy  may  he 
.sequfsii  red  until  he  givessfciinlv  for 
the  pt-i-finmance  of  the  decree-  Anon- 
ymous, 347 

2.  In  t  bill  f  ir  alimony,  ihe  court  will  not 
order  a  seqnesi ration  upon  the  ground 
that  the  dc-l'enda'it  is  wasting  his  pro- 
perty.    Spiller  v.  Spiller,  482 

AMENIJMENT. 

1.  Plea  in  abatement  tlai  defendant  is 
sU'.d  as  cx'cutor  msleatl  nf  adniinis- 
trat  r:  motion  to  amend  urn''  r  the  act 
of  1790  was  refused  Nothing  9^0  be 
amended  under  that  ct  hut  what  the 
other  party  migh'  h  v.-  speciallv  set 
down  as  tilt  c.ti.se  "fde'nniT' r.  Cow- 
per  v.  Edwards  adm'r  of  Webb,        19 

2  A  declarati'in  I.,  i-jecim  r  -tivedon 
a  tenant  in  possi  >sion,  cannot  be  a— 
mended  sn  as  to  cimpiise  more  lands 
than  those  already  described  Carter 
V.   Branch,  135 

3.  Ii  is  a  practice  among  the  bar  to  cor- 
rec'  any  mistake  wliich  the  clerk  may 
make  in  issuing  writs.    Adams  wSpeur 

215 

4.  Where  the  demise  in  an  ejf  ctment  is 
about  to  expire  before  a  trial  cm  be 
had,  the  plaintiflT  will  be  peimiied  10 
amend  iy  e  tending  die  term.  J)ea 
on  dem.  of  Young  v.  Erviin.  323 

5.  A  writ  cannot  be  altered  (i'orn  cove- 
nant 10  debt  except  by  consent  of  par- 
ties :  but  it  is  usual  among  practiiion- 
er^  to  permit  the  amendment,  uhen 
the  mistlike  was  nccasioned  by  ihe 
clerk.     Anonymous,  401 

6.  An  amtndment  cannot  be  pfrin 'ted 
in  in  ejecimentsn  as  to  embnc  land 
nut  iiiclnite.  I  in  the  declaration.  Trox- 
ler  V.  Gibson,  _4i$5 


584 


INDEX. 


7.  An  amendment  will  be  permitted  to 
extend  the  tern  <if  the  dt-mise  in  eject- 
ment, .  V  n  aftei  the  jury  arf  sworn, 
or  tlie  excep'ion  will  be  nver'nnkeil. 
Den  on  dem,  of  Faircloth  v.  Ingraham 
&  Jones,  501 

APPEAL. 

X,  Motion  in  arrest  overruled  and  appeal: 
the  cise  stands,  not  upon  the  reasons 
in  nrifSt,  ')Ut  m  issui'  to  the  country. 
Snowden  v.  Humphries,  21 

2.  The  nei;lect  of  iriiiEinfTupanappeal 
under  tiie  act  of  1777,  c.  2,  s.  84,  m 
proper  lime,  is  not  relievable  by  cer- 
tioruri,  although  occasioned  by  the 
lie(»lert  of  the  clerk  ;  and  the  appel- 
lee may  nrnve  for  the  affirnniince  of  the 
ju'lgment  with  doiible  costs,  either  at 
thi  firs',  or  BV  other  ti  rm,  after  the 
appeal.     Brickell  v.  Sass,  137 

3.  An  appellee  may  mov  for  an  .iffirm- 
ance  of  the  judgmm'  with  double 
costs,  f-iiher  at  til.' firnt  or  Any  other 
term,  after  the  appeal,  per  Macat, 
Jud.e.  But  Haywood,  Juil);e,  denied 
the  propriety  of  ii,  :<ik1  :<  rule  upon 
the  appellant  to  shew  cause  at  the 
next  term,  was  ordered,  jlnony- 
minis,  171 

4.  \"  anp-al  from  the  County  to  the 
Superior  Court  nullifies  th(  judgment 
of  the  Countv  Court.  Davison  v 
Mull,  '  364 

5.  The  appellant  applied  in  time  to  the 
clerk  for  the  papers,  hut  could  not 
procure  thrm.  The  papers  u'ere, 
htivit  ver,  brought  up  after  the  fif- 
teenth day  bi  fore  the  ttrm,  and  a  mo- 
tion was  made  to  have  them  filed  — 
lI|ion  the  motion's  beinfr  upposed  by 
th»  appellee,  it  w  s  refused  upon  the 
ground  that  the  pany  had  his  remedy 
•gainst  the  clerk  It  seems  if  there 
had  been  no  remedy  against  ihe  clerk 
the  papers  might  have  be  n  filed. — 
tM)titson  V.  Stone,  402 

6.  Til.-  fifi,  en  days  before  the  term,  in 
which  appeals  must  be  filed  i  >  the 
Sutierior  C-'urt,  must  be  clear  of  the 
day  nl  filing  the  papers,  and  of  the 
first  day  of  the  teim  ;  at  all  evnts  of 
the  first  day  of  the  term.  Anony- 
mous, 402 

7.  When  in  appeal  from  the  County 
C  un,  and  a  new  trial  had  in  the  Su- 
pei  III  C"urt,  a  verdict  (or  as  «r  at  a 
«aiD  was  obtained  in  the    Superior 


Court  as  had  been  rendered  in  the 
Cimiifv  C'urt,  Hatwood,  Judge, 
thought  ju  igment  migiii  bi"  entered 
up  instanter  against  the  appel'aiit  and 
his  s>  curiiies,  under  'he  act  of  1785, 
c-  2,  s.  2.  But  Stonb,  Judge,  was  of 
opinion  that  m  such  <  asi  the  act  did 
not  apply,      farborough  v.  Oiles,    453 

8.  The  fifteen  days  bi  tore  the  tertp,  in 
which  appeals  must  he  filed  in  the 
Superior  Court,  are  inclusive  of  the 
day  oh  which  the  appeal  is  filed,  and 
also  of  the  first  day  of  the  term  — 
Anonymous,  462 

Vide  Bin,  1. 

APPF.AHANCE. 
A  motion  to  ismiss  a  cause  brought  up 
by  a  certiorari,  was  made  upon  the 
ground,  'hat  the  notice  which  had 
been  ordered  at  the  last  lerm  to  be  gi- 
ven to  the  defendant,  had  not  been  gi- 
ven ;  hut  it  app.aringthat  the  defen- 
dant h  id  t-ntered  an  appearance  by  the 
initials  of  his  sli  Tney's  name  bring 
placed  on  ihf  docket,  the  motion  was 
refused.     Anonymous,  405 

ARBITRVMENT  AND  AWARD 

1.  Award  made  ami  returned  into  court: 
exceptions  to  it  were  fil  d  in  writing  ; 
the  answer  to  the  exci  ptions  was  also 
filed  in  writing  :  both  supported  by 
affid  vits.  Judgment  was  given  u  on 
hearing  them.  This  is  the  iisu  I  p'  ac- 
tice  in  such  cases.    Cmn  v.  Pullom  173 

2.  An  entry,  'referred  to  A,  B  and  C," 
means  a  general  reference  of  the  c -use 
and  not  merely  to  audit  and  slat.^  the 
accounts.     Cleary  v.  Coor  and  JIawkt, 

-'25 

3.  The  aw  ird  of  arbitrators  ought  not  to 
be  set  aside,  unless  in  cases,    where 
their  decision  is  plainly  and  trrossly , 
against  law;  not  where  the  poin'    le-.t 
cided  might  be  doubtful.     Iil.       225 1 

4.  In  an  appeal  from  the  court  below  up<4 
on  exceptions  filed  t"  the  award  of  ar.l 
bitrators,  a  new  trial  if  not  to  be  had] 
in  the  Superior  Court,  but  it  will  ex-l 
amine  into  ills  >-rrors  of  law  in  Ihel 
court  below.   Burton  v.  Shephard,  399  j 

5.  A  decree  will  he    entered  on  an   a- 
ward,  lit  the  term  at  which    it   is    re" 
turi.ed,  it  no  exceptions   oe    ''ad.    to  ' 
the  award  at  that  time.    Southerlund] 
V.  MaUat,  4S1 1 


585 


ASSAULT. 
.  Upon   assault   wiih    int  nt  to  kill,   (he 
coiiti   11  'V  punisli  by  fi  e  only.     State 
V.  Roberts,  376 

ARREST. 

1.  A  warnnt  tlial  dtics  not  state  lliat 
tl>e  sum  (lenriandcd  is  iiver  five  pounils 
bul  nl>  thai  it  ■sunderi\vent\  V'ouihIs 
will  nul  aiitlioiize  an  arrest.  Lntter- 
loh  V .  Powell,  395 

2.  II  a  Jus  ic  of  the  Peace  issne  a  war. 
raiii  tor  a  matter  wiihin  his  jurisvlic- 
tion,  alihou  h  he  m;iy  have  acted  er- 
roneoiisly  in  the  previous  stages,  the 
offict  r  should  eX'  cote  it ;  hut  if  it  be 
for  a  m«tier  not  wiihin  his  jurisdiction, 
the  officer  ought  not  to  execute  it  — 
St  ah  V.  Curtis,  471 

3.  II  'he  officir  be  a  knowu  officer  in 
thai  district  in  which  lie  is  aetl;  g,  he 
need  not  shew  his  warrani  when  he 
makes  the  arrest ;  bu'  if  he  is  an  offi- 
cer appointed  foraspeci.il  purpose, 
he  oui,'ht  toshew  his  warrant  if  deiiKin- 
ded.  ■  Id.  171 

4.  When  he  makes  the  arrest,  h'-  sliould 
briefly  inform  the  party  arresird  of  the 
cause,  as — I  arrestyoa  at  the  suit  ol  A. 
or  in  behalf  of  the  Sta'e — otherwise, 
the  arrest  is  not  fjood.     Id.  471 

5.  If  a  warrant  wunt  a  seal,  it  is  void. — 
And  a  person,  arrested  under  a  war- 
rant without  seiil,  and  wiiliotit  being 
told  for  what  purpose  he  was  arrested, 
is  justified  in  resisting  and  beating  the 
offieer       Id.  471 

Vide  Escape,  2. 

ASSIGNMENT. 

1.  A  witness  may  be  imrodiiced  to  ex- 
plaiit  the  cnndition  of  an  assignment. 
Greenlee  v.  Yoting,  3 

2.  Th'iugh  a  judgment  is  not  negotiable, 
yet  tl"  law  will  so  far  'ake  notice  of 
an  assignment  as  to  protect  it  against 
the    acts   of  the  assignor.       Smith   v. 

•    Powell,  452 

ASSIGNMENT  OF  ERRORS. 
Vide  False  Judgment,  1 . 

ASSUMPSIT  ACTION  OF. 

1.  A'iSUinpit  will  not  lie  for  a  sum,  for 
wh  ch  ther.  is  a  siilisiating  judgment 
Tune  V.  Williams  18 

2.  An  .ctio  up  n  the  ca^e  in  ;.-sump- 
sil,  will  lie  for  the  use  and  occupation 


ofa  house,  at  least  upon  an  e.-cjir' ss 
pronii-;".     .^vonijmous,  485 

Vide  Extiiiguisi.meiit. 

ATTACHMENT. 

1.  An  original  attaclimcnt  Is  only  inten- 
ded to  conipf  I  an  appearance,  a  .d 
where  stir,  ties  are  givtn  they  ar  ex- 
actly a>  bail  and  may  surrender.  J/igh- 
tower  V.  Murray,  21 

2.  Anattaelimen  bon!  is  pond  wil'i  tit 
attest  tion.      Onenlv-  Owens,  365 

3.  An  .tiachment  mie-t  issii.;,  if  the 
Plaintiff  mail  s  the  prnper  iffiib  vit, 
wheili  r  it  !'<•  'rue  or  nni.     Id.       36S 

Vide  ,3dministrato's  &  Executors,  3. 

AVKRAGE. 

When  the  vessel  is  lust,  the  goods  that 
are  s  ved  are  not  liable  to  average.-^ 
Ffrguson  V.  Fitt,  239 

RAIL. 

1.  Suit  in  the  Connly  Court  and  jiidg-- 
meiit  for  Pl.intiff  :  ai'peal  bydcf.  nd- 
ant  t  the  Surerior  Court,  vvlih  A  &  B 
securities  tn  tile  appe  I  b..nd  :  before 
jtidgnient  in  the  Sup' rior  C'liirt,  the 
bail  below  snrretidered  the  defe.idoiit 
and  he  was  committed  :  after  judg- 
mi  nt  in  the  Supencr  Court,  the  ch  fen- 
dant  being  gone,  sci.  fa.  isued  t"  the 
siiieties  in  the  appeal  himd,  and  It  was 
held,  that  the  surrender  by  'he  bail 
ilid  not  discharge  iliem.  Cookev  Lit- 
tle £;?  another.  168 

2.  The  plea  of"  surrender"  by  hail  must 
slate,  whether  the  surrender  was  made 
to  the  court,  or  to  the  Sheriff  lut  of 
couri,  >  Ise  it  will  bi  bad  in  form  Ua- 
vison  v.  Mull,  .364 

3-  Under  our  act  of  1777  c/i.  2,  sec.  19, 
20,79.  tie  bail  ma-,  surf' nder  it  "ly 
time,  bef  re  final  ju'igment  agaoist 
them.     Id.  364 

4.  The  plea,  puis  darrein  continuance  of 
the  surrender,  may  be  refused  hy  ifie 
court  in  cast-s  "f  hardship  unless  he 
Defendant  will  submit  to  the  terms  of 
pav  ng  c'Sts     Id.  364 

Vide  Attachment,  1.  Kscape,  1.  She- 
riff, 14. 

BILLS  OF  rXCHANGE  PROMISSO- 
RY NOIES,  &c. 

1.  An  assignee,  two  years  after  t'le  ag> 
siginiieiit,  sues  the  drawer  and  takes 
him  in   eyecution  by  »  ca.  sa.  from 


586 


which  he  is  dischnt'g^ed  by  an  insolvent 
act;  vecoiivsp  to  llie  •!  sip- or  is  {jone 
by  the  di-l:iy,  ( Quere,  wlietiu  i-  <ine 
yeiir  woMid  not  be  loo  long)  hIso  by 
the  ra.  so.  and  discli  i'p<  tlnrfram. — 
Greenlee  .isdffiiee,  v.  Yowig-,  3 

2.  An  obligee,  who  has  pos'iession  of  a 
bill  i-r  bond,  may  scrutch  out  any  i'l- 
dorsemint  upon  it,  ani  hrlnp  '■ii't  in 
his  own  name.     Dookv.  Castvell,     18 

3.  The  neffotiabilitj  of  a  bill  or  note 
may  be  lestrain-d  by  indoisempnt,  or 
by  special  words   i"  the  iody   "f  the 

.note.     Smitk  V  St.  L  .wrence,        174 

4.  Indorse!'  may  sustain  ai  ac'ion  in  his 
own  name,  eitlier  striking  out  tlie  in- 
dorsement, or  Willi  ut  it.  possession  iS 
the  n  te  hf'mj:  prima  facie  evidence  "f 
payment  to  indorsee.      Id-  174 

5;  A  bond,  layahle  partly  in  money,  «n'l 
parily  in  si^ecific  articles,  is  not  nego- 
tiable under  the  art  ot  1786,  c.  4. — 
Jainieson  v .  Farr,  1 82 

6.  An  'odors.  r  m<y  sustain  an  aclion  in 
his  own  Tiiime,  the  pnssission  of'tlie 
note  hr]n!^  prima  facie  evidence  ofpav- 
mi  nt  to  the  indorsee.  Streug  v. 
Spear,  214 

7.  Notice  need  not  be  given  urnler  the 
act  of  176:?,  c.  9,  a  5,  to  'lit-  drawer,  if 
he  h^s  no  efiects  m  ihe  ha'  ds  of  tlie 
drawee. v    Stanton.       271 

8.  The  receipt  of  part  of  the  money 
from  the  drawee  does  not  discliar,  e 
the  drawer,  and  as  to  the  bal  net  lie 
is  entitled  to  n  tice  only  wh^re  ht 
would  be  so  in  cas'  of  the  whnle'sbi- 
ing  unpaid.     Id.  271 

9.  A  negoti<l)le  instrument  in  the  hands 
of  an  assign>  I-  is  not  subject  to  any 
payments  that  do  not  appear  indorsed, 
if  it  was  assigned  before,  r,r  at  tlie 
time,  it  became  du.  ;  out  if  it  was  as- 
signed after  it  became  due,  then  all 
such  payments,  as  it  can  be  pn-sumed 
the  assignee  hail  notice  of,  shall  be 
good  against  it.      Btactc  v.  Bird,     273 

10.  If  one,  of  twi' jciiit  paye  s,  endorses 
all  his  interest  to  the  other,  that  other 
may  maintain  an  action  in  liis  own 
name  for  the  whole  debt.  Sneed  v 
Mitchell's  Ex'rs.  1.'89 

11.  A  lint.,  was  given  by  the  PlaintifT 
to  WiitkinB  for  lands,  which  it  turned 
out,  Wi'tldna  never  had  ;  H'alkins 
cannot  n.-cover  on  the  note  ;  nd  as 
the  note,  i.eing  for  thi-  delivery  o(  s  e- 
cific  articles,  was  unnegotiable,  J'ick- 


eit  is  subject  to  tlie  same  objection 

Welsh  V."  Wuthins  &  Pickett,  369 

12.  .\  note  payablf  in  tobxcco  is  not 
negotiable,  and  bring  unnegotiable  in 
its  creatioi  ,  it  cannot  be  made  si  by' 
any  ex  post  factu  citrumstance.  Tiif 
dall'e  Ex'rs.  v.  Johnston,  372 

13.  Whce  a  person  receives  evidences 
of  di  bt  from  liis  debtor,  for  the  pur- 
pose of  collecfinK  tht  money,  and  ap- 
plying it  to  the  credit  of  his  debtor, 
he  is  bound  to  the  sami  degter  ofddi- 
gence,  in  attemi>ting  to  procure  pay- 
ment, and  in  giving  notice  of  non-pay- 
ment, tliough  sucli  evidences  of  debt 
be  nut  negotiable,  s  if  they  wer  ne- 
gotiable •  nd  had  been  iiidorsd — Per 
Williams,  Judge,  liut  per  Hatwood, 
Jud);e— The  cr<  diior  wo  Id  nin  be  li- 
able fur  any  loss  in  sucii  ease,  unless 
hisdebt.  r  ou!dshowtliai  the  h.ssliap- 
pen-dbv  his.  tlie  creditor's,  orglect. 'i 
Brown.  Campbell  &  Co.  v.  Mm'rs.  of  ' 
Craii!  &  Clean/,  -        S7ti 

1\  >■  ILLiAMS,Jud!;e,  inclined  'ocliange 
the  opinion  fvpres'.ed  in  the  prece- 
ding cast  of  Brijwn,  (J  Co.  v  Adm'rs. 
of  Ciaig  &  t'leary,  and  to  hold  that 
unnegotia' It-  paper,  tlii  ugh  iiitlorscd, 
d'O  not  biiiil  to  the  same  diligt-nce  as 
negotiable  mstruiTienls.  Mttin  v. 
Taylur,  381 

15.  lioiitls  made  in  Virginia  and  assign- 
able by  tlif  laws  of  tiiat  Stale,  but  not  \ 
assignable  by  out  laws,  must  be  sub- 
ject to  our  laws  wlien  the  contract  of 
a.ssignm.'nt  is  made  in  this  Stale- — 
Id  381 

16.  A  bond  upon  which  is  an  indorse- 
mi  nt  purpoiting  that  it  may  be  dis- 
ch  rged  by  the  payment  of  so  much 
tobacco,  is  not  negotiable  undir  the 
aci  of  1786,  c.  4.  Campbell  v.  Mum- 
ford.  398 

Vine  Partnership,  4.  Injunction. 

BOND. 
Vide  Debt  Aclion  of.     Attachment,  2. 

HOUNDARY. 
1.  In  the  case  of  bouinlaries  expressed 
in  deeds  atiu  paUnts,  the  courses  and 
distances  meiitioned  in  such  deeds  or 
patents,  musl  be  observed,  except 
where  a  natural  loundary  Is  called  for 
and  shown,  or  wheie  markeo  linesand 
corners  can  be  proved  to  have  been 


r 


INDEX. 


587 


made  at  the  original  survey.  Brad- 
ford V.  Hill,  '  22 
,  Tlif  l.isl  line  of  ;i  boundary  was  from 
a  white  oak,  (  wliicli  stooil  half  a  mile 
from  the  river  )  "  tht-nce  :ilon^  the  ri- 
ver to  the  bei;inniiig":  MeUl,  t^at  Hie 
river  is  the  b.u  uUr^  Den  on  dem.  of 
Sandifer  v.  Faster,  io7 
,  General  r<-j)utatioi)  is  admissible;  as 
evidi-iice  in  cases  of  boundary.  Stan- 
den  v.  Bains,  ^38 
.  Marked  luitrs  and  corners  may  be  es- 
tablished as  the  true  ones,  a1' hough 
variant  from  the  courses  and  distances 
mentioned  in  the  deed.  Id.  238 
.  When  a  natural  boun.iarv  and  courses 
and  distances,  are  all  gven  in  a  deed, 
the  natural  bound.iry  will  prevail  in 
case  of  a  variance  ;  and  in  doubtful 
cases  a  reg.rd  to  this  pi'tferenc  must 
always  be  observ.d.  Den  on  dem-  of 
Pollock  V.  Heirs  uf  Harris,  252 
,  One  line  of  a  Ooun  ;  iiy  was  from  a 
poplar  on  a  swamp  thence  down  ihe 
swamp  to  tlie  beginning:  H'  Id,  tha; 
the  swamp  and  not  a  straight  linf  from 
the  poplar  to  Iht  beginning,  is  the 
boundary,  f/artsjiellv  JVestbrnok.  258 
'.  If  a  course  ami  distance  be  cull,  d  for 
in  a  deed  terminating  at  a  natural  boun- 
daiy,  there  the  Imr  must  teriuinate, 
will  tlier  It  exceeil  or  tall  short  nf  tiie 
distance  mentioned  in  the  deed.  If  a 
course  and  disi  Mice  be  called  for,  and 
there  is  no  naiiinl  boundary  nur  mar- 
ked line,  'he  course  and  distance  will 
prevail  ;  but  if  there  be  a  marked  line 
and  coiner  variant  from  he  cnurjc  .nd 
distance,   the  marked  line  and  corner 

must  be  pursued. v.  Bealtij,     3r6 

8.  When  a  natural  boundar;  is  neniion- 
eil  in  a  patent  or  deed,  it  will  control 
both  course  «nd  di  tnce  if  variant 
frum  it.  Witherspoon  &  wife  w.Bhmhs 
496 
Where  there  .arc  t-.vn  natural  bnunda- 
ries,  either  of  which  will  answer  the 
description,  parol  evidence  may  be  re 
ceived  to  shew  the  true  one.  lU.     496 

BURGLARY. 

1'.  If  an  oulj  hoiiie  be  so  n 'ar  the  dwel- 
ling house,  tiiat  it  is  used  with  the 
dw  llini<  house,  as  appurt  nant  to  it, 
burglary  inay  Ije  committed  in  it.  In 
this  case,  t'le  out  hjuse  w  .s  seventeen 
and  a  iiairi.rftfiom  the  dwelling  house 
f}tate\.  Tioitltj,  102 


2.  A  burglary  may  be  committed  in  a 
store  house,  stS'iding  t\»  enty-four  y'ds 
from  tne  dwelling  li  use,  a'id  Separa- 
ted tliereirom  ny  a  lenc-e,  it  the  own- 
er or  his  servants  S"  ;ietimes  sleep 
therein.     State  v.  Wilson,  242 

Vide  Indictment,  1. 

CARRIER. 

A  person,  wiio  did  not  make  i'  his  ordi- 
nary employment,  undertook  to  carry 
gouds  for  lure  ;  he  is  nut  to  be  tiken 
as  a  commo"  carrier,  and  liable  to  the 
same  extent,  but  is  bound  only  to  com- 
mon prudence. v.  Jackson,      14 

CAVEAT. 

Vide  Grants,  9.     Possession,  4. 

CKRTIORARr. 

1.  Certiorari  lies,  and  indeed  seems  the 
only  pio;  er  writ  where  a  garnishee 
seeks  to  reverse  an  rroneous  .judg- 
ment agaiiis'  nim.  Mien  v.  Willia)ns,\7 

2.  The  «om1  writ,  in  tlie  act  ot  1787, 
ex  ends  to  certi,raris  as  well  as  to  bills 
in  Equ.ii,  nd  s  curitj  must  be  given 
for  prosecuting  them,  nrthey  will  be 
disrnis  eel.      Waller  v.  Brodie,  Si8 

3.  Motion  to  dismiss  a  caus  by  the 
Plainiifl'in  a  Certiorari,  who  had  been 
Defendant  in  the  court  below,  upon 
the  ground,  that  the  Plaintiff  in  the 
cause  bad  not  given  securit)  in  diis 
court  for  costs  in  pursuance  ot  a  no- 
tice strvi  d  upon  him forthat  purpose. 
Per  Curiam,  if  the  suit  is  now  dismiss- 
ed, we  must  order  the  court  below  to 
proceed  to  judgment.  Dawsey  v. 
Davis,  280 

4.  W.ien  a  cause  is  removed  by  certiorari 
granted  by  a  Judge  out  of  ou.t.  it 
must  be  placed  upon  the  ar.^uiiKnt 
docket,  an<i  Defendant's  aflfid  vi is  will 
be  received  to  shew  the  impropriety 
of  granting  a  ne  A  trial.  If  the  certio- 
rari .e  obtained  in  court  upon  a  rule 
maiie  upi>n  tne  other  party  to  shew 
cause,  tiie  case  when  removed,  shall 
be  put  upon  the  rial  docket  without 
fiinher  argument.     Id.  280 

5.  If  a  certiorari  be  obtained  to  remove 
a  caubi.  u,jiin  the  ground  that  an  ap- 
peal had  oeen  relused  in  the  court 
below,  ih  •  case  sliall  oe  placed  upon 
the  trii.1  aockt-i,  wnii.iu.  sliewinu  any 
other  cause.    Anonymous,  S02 


588 


C  Any  omission,  neglect  or  delay  of  the 
clerk,  >r  any  comnvaiice  of  tlie  id- 
verse  purtv,  or  (lie  iinprDpei-  conduct 
of  till'  (.'oupity  Court  in  j^rHiiiinjj  an 
appeal  wliru  pr  pcrly  applied  tor,  is 
sufli  lenl  to  enlitle  the  party  lo  a  cer- 
fiuro't,  and  a  neu  trial  uill  be  iinine* 
d.i'.  I  tfraiiti  d  ill  ihe  court  above. — 
Chambers  \ .  S'liih,  366 

7.  vV  In. re  a  writ  or  cerh'orarJ  is  granted 
by  •  Judge  out  ot  court,  tbi-  cause  is 
placed  upon  Ihi  argunient  docket  ; 
Where  it  is  obtiiitd  in  court  upon  an 
affidavit  and  rule  to  sliru  cause,  it  is 
placed  iinnicdiati-ly  upon  ilie  trial 
docket ;  bui  it  obtiincd  in  C'uri  With- 
out a  ruK',  &c  a  mus'  be  placed  ii  on 
the  ar;,'unien'  dockit.  Anonymous,  o&T 

8.  Where  a  cerKo^an  issues,  liie  adv.  rse 
pariy  has  nonce  t  appear  on  the  re- 
turn day  ot  the  certiorari,  &  it  the  writ  is  . 
not  then  returned,  nni  ar.v  j>r'>cerdin^ 
had  to  contiiiut-  it  in  ciuri,  it  is  like 
oliier  writs  liscoiiiinu  .  an*l  ^  pvoee- 
denilo    ught  to   ssiie.    Anonj)inous,  420 

Viut  Appeal,  2.  ^ppeurance.  . 

CHOSE  IN  AC  riON. 

1.  A  slave  wr  nglully  taken  out  ot'the 
possession  of  A  and  sold  lo  I),  and 
while  in  tiie  possession  ol  U,  sold  by 
A  to  <;,  may  be  rccoveivil  \  C.ma 
sun  i  his  own  name.  Hobertson  \. 
Stewart,  169 

2.  riie  purchaser  of  a  cAose  in  action  (or  a 
valuable consider.itioii  mllu  piottct- 
ed  m  Kquity.  v.  A-riii^ton  ti  at. 

164 

3.  A  bare  rigni  of  entry  ca  i  it  ue  ii ms- 
ferred.    Den  on  dem.  ofSladt  v.  Smithy 

Vide  Set-off,  4. 

CONDITION. 
Vide  Variance,  2. 

CONFKSSIONS. 
Vide  Evidence,  7,  Jl,  --,  25. 

COvSlDBKAUON. 
Vide  Mo'iey,  4. 


costs  against  tlie  Plaintiff*  himself. 
Merritt  v.  Merritt  &c.  28 

2.  Tile  c  nni  Caiiiot  order  the  State  to 
pay  ccist-i  as  a  condition  of  geti  Wig  a 
continuance  :  nor  inde  d,  it  seems,  in 
any  case.     State  v. 221 

3.  \  surve>or  and  juiy,  who  were  ap- 
pointed under  separate  orders  in  sev- 
eral distinct  suits,  shall  be  paid  lull 
costs  in  each  sui<,  although  from  the 
locality  of  the  lois  surd  tor,  the  same 
labm  .laswerrii  tor  all  the  survr\s  — 
Wilcox  V  223  L  484 

4.  All  ordei  hai  each  parly  .ihall  pay 
Ins  ow  .  Costs,  means  the  cosis  accru- 
ing ti'um  the  process  issuid  for  i..ch, 
and  not  iialllhe  whole  costs.  T/ie  co- 
p>  ol  the  bill  saved  on  the  delendaiit 
is  ibr  HlaiutilT'i  benetii,  and  .:e  must 
pay  till  ii.     .'Inonymous,  487 

V'd  IViineis,  4.  Continuance,  1,  2. — 
Oruiits,  9. 

CONTlNlfANCE. 

1.  Where  a  cause  had  been  depending 
three  years  in  tlie  County  Court,  and 
five  years  in  the  Superior  Court,  and 
the  P^air.tifi' lor  the  last  three  years 
had  been  unitornily  ready  fir  trial, 
the  couii  ordered  ihe  Uefeiula.il  to 
pay  (he  costs  ol  the  Plaiiit;H''.s  wiines- 
sen  during  the  term  as  the  condition 
ol  another  conliiiuance.  JJenondem, 
of  Tyce  v.  Ledford,  26 

2.  \  party  urlio  has  been  guilty  of  ni  g- 
led,  may,  upon  seeking  a  Continu- 
ance, tic  compelled  to  pa>  tlK  b'>sts 
of  tile  urm,  as  the  condition  of  the 
cun'iiiuance,  and  tliese  cusis  arc  not 
lo  lie  refunded  eeen  tliougn  hu  should 
succeed  III  UK-  c  luse.  Den  on  dent,  of 
Park  v.  Cochran,  et  at  178 


CONSIGNEE. 

Vide  Factor. 

CDSTS. 

1  U;oii   nulla  boi-a  i    tunnd,   »he  rlpfk 

may  insuc  execution  tor  the  Plaintiff's 


COHHORAilON. 

Vide  Ejectment,  6. 

COVENANT   TO  STAND  SEISED. 

1.  A  need,  which  is  in  forui  a  bargain 
and  '■all  except  thai  the  coiisiUeraiion 
is  rxpicssrd  to  be  love  and  alf<  ctmn, 
iiiste '!>  ol  money,  may  be  cun^truida 
cov.  n..  t  t'l  slaml  seised.  Den  on 
dem  o/Sladev.  Smii/i,  248 

COVK.     \N1'.  ACTION  OF. 
Vide  Debt,  Mtien  of,  1,  2. 


INDEX. 


589 


DKBT,  ACTION  OF. 

1.  AVhereUiereis  no  subscnbiiiff  witness 
to  a  deed  or  bond,  cusP  and  nnt  cove- 
nunt  iir  debt  is  the  prnpiT  itciion. — 
Ctemenis  &  Cn.  v.  Easo'i  &  Wright,  18. 

2.  A  bond  for  p!<ym.?nt  of  money  witli- 
out  a  subscribiner  witness,  c.ri  only  be 
declared  upon  as  a  sealed  instnimeni. 
Ingrnm  v.  Hall,  193 

Vid-  Money,  7. 

nF.CLAKATlON. 

There  is  a  difi'-i'fnce  beiwe -n  luyi()(j  a 
fact  afier  ili.?  time  it  really  liuppen-d, 
and  before  the  time  it  really  happened; 
in  the  first  case  the  declaration  is  siip- 
portible  ;  in  the  second  it  is  not. — 
Quere  bv  Hat  woo  n.  IVitherspoon  v. 
Isbell,    '  12 

DF.EI). 

A,  seised  in  fee  of  the  premises  in  ques- 
tion, executed  a  deed  to  his  son,  in 
which  be  stated  that  for  the  prefer. 
ment  of  his  siin,  he  conveyed  Hie  land 
to  him  and  his  heirs  forever.  I'r  ividi'd 
that  this  deed  shall  not  take  eff'oct  dii- 
rini;  the  lives  of  the  j;rantor  and  his 
wife,  bill  the  premisi's  shonld  remain 
first  to  him  for  hii  niittirul  liie  and  then 
to  Ikt  for  her  hlV  :  held,  that  the  l..>t 
clause  of  the  deed  wns  a  good  reserv  i- 
lion  of  the  life  estiitus,  and  that  the  fei' 
is  a  pfood  remainder  upon  'hem.  Den 
on  di-'in  of  Snsser,  &c.  v.  Blyth,         259 

Vide  Evidnnce  1,  2,  6,  »,  9,  13,  20.~Graiil 
1. — Covenant  to  slant!  irised. 

DI'.LIVKIIY. 

A'ide  Gifts  \—Evidcnec  9. 

DKM.VNI). 

Vide  Di'tinue  1,  2,  3,  5, — Limitations, 
Statute,  vfi. 

DEMUKIIING  OF  THE  I'AUOL. 

Theileimirring  oftoe  puroldoisnot  holil 
in  this  Stale.— iiiifar  v.  Long,  1 

DKPOSITIONS. 

1.  Notice  to  laki-  a  deposition  at  a  cer- 
tain place  in  I  enn.-ssee  on  the  Sth  or 
6ih  days  of  a  particnlir  month,  held 
good. — Kennedy  v.  Alexander,         25. 

2.  Uf-positions  taken  in  the  ai)s<-iice  of 
a  criminal  shall    not    be   reid    aj;  dnst 

^  him.     State  v.  WM.  103 

3.  A  depi.s.tion  not  sijjned  by  thed.  po- 
niMit  niav  be  rend  in  evidence.  Mnr- 
pheyy.  Wovk,  105 


4.  II  is  nstial  (o  read  depositions  v.  iiere 
it  appears  that  they  have  i)een  re.<d  in 
the  court  below.uMJess  it  can  he  shown 
that  there  is  an  irregularity  in  them, 
and  the  want  of  deponent's  sij;n,.ture 
is  not  sufficient  to  reject  them  Ruth- 
erford V.  Nelson,  105 

5.  When  a  party  moves  away,  without 
Iffavin;^  an  attorney  upon  whom  a  no- 
tice 1 0  take  deposHions  may  be  served, 
such  notice  i,i.ay  be  given  in  a  public 
Gazette  by  in  order  >f  thf  court  for 
that  purpose.  Maarwell  v.  Holland,  302 

6.  When  either  party  his  filed  his  depo- 
sitions, he  shall  apply  lo  t!ie  M.ister 
who  shall  issue  notice  to  the  other  par- 
ty to  attend  on  a  particular  da,,  which 
sliall  be  served  a  convenieni  time  be- 
fore the  day  appointed  ;  upon  which, 
the  mast-r  is  to  examine  all  matters 
relative  to  the  ■lep<isitions,  an;l  his  de- 
cision upon  them  shall  be  conclusive, 
(inless  objections  to  it  are  madi-  at  the 
time  and  an  appeal  tothe  Court  taken. 
Ifthesi  precautions  are  not  obsi-rved, 
objections  lo  the  reading  of  depositi- 
ons ma\  lie  made  at  the  heating. — 
Ride  of  the  Court,  349 

7.  A  deposition  certified  to  have  bt  en 
taken  on  tiie  day  and  in  the  county  in 
South-Carolina  as  specified  in  the  no- 
tice, but  without  stating  the  particular 
place  cannot  be  read.  English  v. 
Camp,  358 

8-  .N't  ice  to  lake  a  deposition  at  the 
house  of  John  Archelaus  KImorc,  but 
the  deposition  ctnifi.  d  to  have  !).  en 
taken  at  the  house  of  John  Elmore: — 
held  (.'lod,  as  they  will  be  presumed 
to  be  the  nanifs  of  the  same  person. 
Elmore  \.  Mills,  359 

9  I'  s  the  comTion  practice  torec.  ive 
the  deposition-  of  those  public  officers 
(as  the  c'lllectoi'^  of  imports)  the  du- 
ties of  whos-  offic  require  the  i  at- 
tendance at  a  partii  ular  place.  JlJusA- 
roiv  SJ  Co.  V.  Graham,  361 

10.  .\  deposition  •  x|)ri  s-edto  have  been 
take  1  at  the  housi-  of  Manning  at  Ha- 
lilax,  (V  ..)Ccurt  house,  when  the  no- 
tice via',  to  take  it  ai  Halifa\  Court- 
house, was  rejfCted,  alth'Ugh  it  was 
proved  that  Manning's  bouse  ^tood 
i.nly  ab<iut  eighty  yards  from  the  c  urt- 
hi  use.     Alston  v.  Taylor,  381 

11.  Per  W  II.LIAM9  Juilge.  A  notice  to 
t  ike  a  deposition  ought  to  be  servetl 
upon  the  person  ot  the  o'.hc  pary. 
Haiwoob  .ludge.    Leaving  tlit;  notice 


599 


at  the  residence  of  the  ailverse  party 
is  a  vnflicient  service.  Kennedy  ii  Co. 
V   Fairman,  404 

12.  Tile  notice  was  to  take  a  Jeposition 
in  Homer  town,  and  the  raption  iif  (he 
deposition  exprrssetl  t!i  >t  it  was  taken 
in  that  town.  The  rli-position  v.  as  re- 
jected. SuT.  Part.  ofM'j\aughlon  & 
Co.  V.  Lester,  423 

DEPRECIATED  CURRENCY. 

Tide  Money  2,  5,  6,  7. 

DETINUE. 

1.  Detinue  will  lie  ngainst  one,  of  whom 
the  negro  hud  bei  n  dem;inde.l,  at- 
thoupli  befor.-  the  commencement  of 
the  action,  tlie  nepro  hid  been  return- 
ed to  the  person  of  «  horn  he  h:id  been 
hired.      Merritt  v    IVarmouth,        ,  12 

2.  Demand  is  necessary  to  su-tain  the 
action  of  detinuo,  and  it  must  be  m»de 
by  the  claimant  himself,  or  by  some 
one  for  him  and  so  made  known  at  the 
time  of  the  demand.  Elwick'a  Execu- 
tors V.  Rush,  28 

3.  On  demand  previous  to  bringing'  de- 
I   tiuue,  defendant   acknowledjjed  that 

the  negroes  were  in  his  possession. — 
Proof  that  he  had  given  one  of  the  ne- 
groes to  his  son.in-law,  who  wns  in  pos- 
session ot  him  at  the  time  of  the  de- 
mand, -.hall  not  prevent  the  defend- 
ant's liability  to  the  action.  Floweri 
'    ▼.  Glasgow,  122 

4.  In  detinue  the  jury  should  assess  the 
vilue  of  different  articles,  separately. 
Hatwoiid's  note  to  Lewis  v.  Williams, 

150 

5.  Demand,  previous  to  bringing  deti 
nue  is  not  necessary,  or  if  so,  only  for 
the  purpose  of  enablingtlie  jury  to  de- 
cide upon  the  justice  of  allowing  or 
disallowing  damages  for  the  detention. 
Idem,  150 

6.  The  action  of  detinue  will  not  lie  a- 
goinst  executors  for  the  detainer  of 
their  testator.  398 

DESCENT  CAST. 
Vide  Strudwick  v.  Shaw,  S 

DI-CONTINUANCE. 
Tive  defndaiiis  in  trespass  of  which  four 
are  taken  and  u'lead  to  issue  ;  if  the 
process  is  not  continued  against  tlie 
fittli  for  several  t>rm$,  it  will  be  a  dis. 
continuance  as  to  all.  Ctbbt  r.  Fav>- 
rtr,  12 


DOWER. 

1.  A  widow  since  the  act  of  1784  can 
claim  dower  only  out  of  the  lands  of 
whieh  the  husband  died  seised  or 
po^sessed.  J  f instead  v.  the  Heirs  &c. 
of  JVinsiead,  243 

2.  A  levy  upon  lands  in  the  life  time  of 
the  husband  divests  the  widow's  claim 
for  dower  upon  those  lands,  tho'  they 
may  not  be  sold  until  after  his  death. 
The  case  was  not  decided,  but  Hay- 
wood Judge  was  clear  upon  the  points 
above.  Williams  Judge,  differed  at 
first,  but  afterwards  seemed  inclined 
to  change  iiis  opinion.     Iderjt,         24" 

Vide  Haywood's  note  to  Lee  v.  Ashley,  18ii 

EJECTMENT. 

1.  In  1728  the  land  in  dispute  was  grant- 
ed to  A.  who  in  1730,  conveyed  to  P.. 
who  soon  afterwards  went  to  England. 
B.  sold  to  C.  who  in  came  to  this 
country  but  soon  went  back  aijain. — 
In  C.  returned  to  Carolina  where 
he  remained  and  in  1787  brought  suit. 
One  D.  settled  on  the  lands  in  ques- 
tion in  1751  ;  lived  upon  them  thir- 
teen years  and  dieil  in  possession, 
leaving  a  son.  The  son  ass  gned 
to  !.ome  person,  who  assigned  to  the 
defendant  who  had  lately  procured  a 
grant.  Under  these  circumaiances  it 
was  held  that  the  PLaintift's^^  posset- 
sionis  was  lost.     Strudwick  v.  Shaw,  5 

2.  In  ejectment,  the  word  tenement  w  th 
metes  and  bounds  is  sufficiently  cer- 
tain. Den  on  dem.  of  Osborne  v.  Wood- 
son, 34 

3.  The  defendant  in  an  ejectment  will 
not  be  allowed  to  defend  only  as  to  so 
mnch  as  the  plaintiff  can  prove  him  in 
possession  of.      Carter  v.  Branchy  135 

4.  Articles  for  the  conveyance  of  land, 
upon  the  payment  of  money,  will  not 
create  such  a  trust  on  the  part  of  the 
lilaintiff  (at  least  before  tin-  money  is 
jiaid)  as  to  prevent  his  recovering  in 
ejectment  from  the  person  to  whom 
tlie  articles  were  made,     .inonymous, 

331 
.5.  A  claimant  by  escheat  may  enter  and 
therefor  m  ly  sustain  ejec'meni.    Uni- 
versity of  N.  Carolina  v.  Johnston,  370 
6.   A  Corp  nation  must    make  its   leases 
under  seal,  but  the  lease  which  is  sta- 
ted in  an  ejectment  by  a  corporation, 
is  not  to  he    proved,  and    will  be  pre- 
sumed   1  legal  one.     tdem,  373 
Vide   E.xclusive  or  Inclusive. — .imenrl- 


591 


ment,  2,  4,  6,   7.— Grant,  7,  8,  19.— 
Matement,  5. 

EMBLEMENTS. 

Bar.in  of  feme  who  li;id  ii  life  estate,  is 
sued  for  use  and  occupation  by  tlie  te- 
nant in  fee.  The  feme  had  died  after 
the  baron  had  prepared  the  land  for 
cultivaiion  but  before  pl,.nting-,  it  w.^s 
held  that  the  Plaintiff  was  ei. titled  to 
recover,  but  compensation  must  be  al- 
lowed for  the  labor  of  the  defendant 
in  preparing  it  for  cultivation.  Gee  v. 
Young,  17 

ENTRY. 

liocksin  a  river  above  the  surface  of  tlie 
water,  are  vacant  property  and  the 
.<;ubjects  of  our  entry  laws  Jones  v. 
Jones,  488 

Vide  £xcctttion  1 — Pottession  4. 

EQUITY. 

1.  A  nepro,  whose  life  was  forfeited  to 
the  public  for  nmrdc-r,  was  sold  under 
execution  without  that  fact  being  then 
known.  A  bill  in  equity  by  the  pur- 
chaser praying  to  stand  in  tlie  place 
of  the  judgment  creditors  for  the  a- 
tnount  of  the  purchase  money  was  sus- 
tained by  tbe  Court.  Cornier  v. 
Gti/inn't  Executors,  121 

2.  After  injunction  dissolved,  the  plain- 
tiff in  the  injunction  must  take  further 
steps  within  two  terms  after,  or  his  bill 
will  be  iismisBed  fir  want  of  prosecu- 
tion.     Anonymous,  162 

3.  Since  the  act  of  1786,  in  case  of  com- 
plainant's death,  the  bill  is  continued 
in  court  two  terms,  in  either  of  which 
terms,  the  legal  representatives  may 
apply  and  be  made  parties  without  a 
bill  of  revivor  ;  and  the  ;ipplication  of 
a  person  not  the  leg:*!  representative, 
may  be  resisted,  the  same  as  if  there 
were  a  bill  of  revivor.  A  person  who 
may  become  interested  otherwise  than 
as  legal  representative,  must  state  the 
circumstances  by  a  bill  for  that  pur- 
pose.    Idem,  162 

4.  A  person  made  a  party  defendant  in 
a  bill,  who  is  not  compellable  to  an- 
swer and  against  whom  no  relit  f  is 
sought,  may  have  the  bill  dismissed  as 
to  iiim.  J'citterson  ii  others  v.  Patter- 
son y  Sellars,  167 

5.  Wlien  the  court  feels  any  doubt  a- 
bout  deciding  upon  a  plea;  it  can  over- 

■  rule  it  and  suffer  the  defendaiii  to  in- 
sist upon  the  same  in  his  answer.  /"- 
gram  v.  Lanier,  221 


6.  Where  the  law  an  give  comph  te  re' 
dress,  quity  will  not  interfere.  Olat' 
saw  V.  Flowers,  233 

7.  Eqiii  y  cannot  chsnge  established 
rules  of  law,  nor  act  as  a  ccurt  of  er- 
rors to  correct  erroneous  decisions  of 
law.     Idem,  233 

8.  Where  a  matter  is'properly  determin- 
able t  law,  rind  tiie  l.-iw  can  give  com- 
plete r.  dress,  equity  will  not  inter- 
fere.    Perkins  V.  Ballenger,  367 

9.  Plaintiff  has  two  terms  after  tlie  dis- 
soUuinn  of  an  injunction,  in  which  he 
must  take  somesteps.  or  hishill  »  ill  be 
dism  ssed,     Avery  v.  Brance,  369 

10.  I'he  two  terms  within  which  the 
plaintiff  must  proceed  after  the  disso- 
lution of  his  injunction,  are  exclusive 
of  the  one  in  which  the  dissolution 
takes  place.     Jlno7iymous,  451 

Vide  Injunction. 

ESCAPE. 

1.  An  action  will  not  lie  against  the  She- 
riff for  an  escape  upon  mesne  process. 
He  ought  to  be  proc-'  d(  d  a.<iinst  as 
bail  under  the  act  ot  177",  ch.  2,  sec. 
16  and  76.     Swepson  v.  «  hitaker,  224 

2.  Anac.ion  loi-an'icape  will  not  lie 
against  v.n  (;ffic^i,  who  had  made  ar- 
rest when  lie  had  no  authority  to  do 
so.     Lutterloh  v.  Powell,  "^  395 

Vide  Sherijff"  14. 

ESCHEAT.    - 

Vide  Ejectment,  5. 

EVIDENCE. 

1.  Where  a  party  I  as  lost  his  deed,  or  is 
out  of  possession  of  it,  he  himself  and 
no  oiher  person  for  him,  must  swear 
to  such  loss,  belbre  a  copy  can  be  re- 
ceived m  evidence.  Blanlon  v.  Mil- 
ler, 4 

2.  Proof  of  the  acknowledgement  of  a 
deed  is  no  proof  of  the  sealing  of  it. — 
Clements  y  Co.  v.  Lason  &  Wright,  18 

3.  Proof  of  the  hai'dwriling  of  the  wife 
of  tile  oblifTor  is  not  admissible.  iVe- 
tius  \.  Brickie's  adm'rs.  19 

4.  The  mark  ot  a  subscribing  witness, 
who  is  dead,  may  be  proved  to  let  in 
testimony  of  the  obligor's  hand-writing. 
Llem,  19 

5.  Upon  proof  that  the  subscribing  wit- 
ness could  not  be  found  Uf)on  search, 
his  hand.wri'iiu,  was  admitted  to  be 
proved  ami  the  •  ■  d  given  in  evi- 
dence.   Jones  r.  Briiihloi,  2G 


692 


INDEX. 


6.  If  a  d-ed  be  lost  and  its  former  cxis- 
tenc  i  lovt-d,  a  copy, 'T  ;f  nn  copy, 
parolee  dfnct  nnv  hpt;iven  (if  ilsco'i- 
tenis.     Den.  r!cm.  Bakerv.  It'fbb,     43 

7.  Corifi  ssioiis  before  a  Justice  f  (he 
peace  mu\  be  admitled  in  evidence  al- 
thuUHh  "It  reduced  into  writing. — 
State  V    Jrwin,  !  12 

S.  P I  ii  miff' may  prove  the  loss  ofhis  deed 
by  liis  own  oath  ;  but  not  ihat  the  plat 
cif(  rel  ill  supDort  of  his  title  wis  part 
of  ti.e  di  cd  lost.  Seehrlghl  on  ilem. 
of  Wright  £J  Wife  V.  Sogan,  176 

9.  Pro.  f  of  the  olJilj^or's  haiid-writing, 
w'lere  there  is  no  subscribing  witness, 
■w  l!  be  admiite'l  as  proof  of  Ihe  seal : 
tut  proof  of  the  seal  is  not  evidence  of 
the  deliviry,  which  is  to  be  inferred 
from  other  circumstances.  Ingrain  v. 
Hall,  193 

10.  I  he  indisposition  of  a  witness  whose 
deposition  had  been  taken  cle  bene  esse 
and  w  s  now  ottered  to  be  read,  can- 
not be  proved  by  the  oath  of  the  par- 
ty   ))roducing    it,     v.  Brown's 

ex'rs.  227 

11.  W  hen  the  siibscribinj;  witness  lo  a 
be  nd  is  dead  and  his  bund  writing  can- 
not be  proved,  proof  of  tlie  handwri- 
ting of  the  obh^;or  may  be  received. 
Jones's  adm'rs.  v.  Blount'^  e.x'rs.     238 

12.  It  ^cenib   tliat  judicial    proceedings 
»  spc.king  of  an  act  of  the  Assembly, 

may  be  evidence  of  such  act  when  it 
is  lost  hy  time  Deii  on  dem.  of  Slade 
V.   Smii/i,  2-i'i 

13.  A  copy  of  a  rej,'istered  deed,  certi- 
fie  '  b.  the  Clerkof  the  County  Coi.rt 
in  Virginia,  who  was  certified  by  the 
Governor  to  be  Clerk  of  thxt  Court,  is 
ailmissible.     Etinore  v.  Mills,  359 

14.  Acts  of  the  General  Assembly  ofVu- 
giriia  must  be  certified  by  the  Secre- 
tary and  not  by  the  Clerk  of  the  House 
ofheleKates,     IJ.  359 

15.  Ut)0  >l!mof  that  a  person  of  the  name 
of  tlu  defendant  executed  the  bond, 
the  signature  to  tiie  bond  niiy  be 
shown  to  l)e  liis  hand-wriiing  to  prove 
the  identity.  Jlushrou)  is!  Co  v.  Gra- 
ham, 361 

16.  ^^  hen  the  wife  acts  as  si  ivant  or  a- 
gentofthe  husband,  hi  r  admissions 
against  his  interest  are  admissiiilc. — 
Bugltes  ailm'rs  v.  Stokes  adm'rs        372 

'  17.  'I'liC  rrrei]ii  ot  an  ..ttoi my  now  de- 
ceatid,  'sadmis.s.ble  to  prove  th'  time 
when  bonds  were  put  iino  ',\s  liands 
lor  collection,    .^llston  v.  Taylor,  381 


18.  A  record  of  Court  testified  proper- 
ly, except  11  want  of  the  sed  of  the 
Court,  is  not  admissible  unless  it  be 
certified  that  the  Court  bad  no  seal. — 
Id.  381 

19.  The  declarations  of  the  father  that 
his  conveyance  to  his  child  was  fr.u- 
diilent,  are  not  admissible  against  the 
child.     :^nold  v.  Sell,  396 

20.  A  Copy  of  a  deed  cannot  be  read  un- 
less Ihe  plaintifl'will  swear  that  lis  has 
not  the  original,  and  ih  t  he  cannot 
procure  it.  Park  v.  Cuchran  and  oth- 
ers, 410 

31.  A  confession  in  an  answer  to  a  bill  in 
equity,  may  be  given  in  evidence  a- 
gainst  (he.  defendant  in  an  action  by  a 
third  pefson.  Kiddie  stir.  pari,  of 
Hamsay  CJ  Kiddie  v.  Debrutz,         420 

22.  NaUed  c 'nfessions  uiiaUeiideil  with 
citciimstances,  are  not  sufficient  to 
convict  of  a  capital  crime.  State  v. 
Long,  •  455 

23.  Proof  of  the  Clerk's  hand  writing  in 
entries  m  ide  in  the  plaintiff's  books, 
shall  not  be  admitled  whde'the  «:lerk 
is  living,  although  he  may  be  absent 
from  the  country.  Kennedy  SJ  Co.  v. 
Fairina't,  45S 

S4.  In  an  indictment  for  horse-stealing, 
the  jury  may  infer  from  circumstances, 
tl.al  the  horse  was  taken  by  the  pri- 
soner in  the  district  in  which  he  is 
tried,  although  he  was  never  se'  n  with 
the  horse  in  that  district.  Stale  v. 
^idams,  463 

25.  Coifessions,  whether  extorted  or  not, 
that  relate  a  number  of  circumstances, 
all  of  which  are  proved  by  oiluriesti. 
mony  actually  to  exist,  ar>  admissi- 
ble against  the  prisoner.  State  v. 
Moore,  482 

Vidi    Witness  passim. 

KXCHANGE,  COURSE  OF. 

Virginia  money  contracted  tor  in  this 
State,  and  payable  here  must  be 
determined  by  legally  establi.shcd  rates 
and  not  b\  the  course  of  excbangi.^ 
Monlfort's  ex'rs.  v.  .ilsloh,  2 

EXCHANGE. 
A  person  who  has  a  chattel  in  posses- 
sion belonging  to  another,  and  ex- 
changes it  for  another  atticle,  acquires 
no  property  in  the  article  i»ki  n  oi  i  x- 
clisnge,  if  the  real  owner  tloiks  pro- 
per to  apiii'ove  of  the  transaction. — 
Cox  V.  Jackson,  234 


INDKX. 


593 


TiXCLUSIVE  AND  INCI.USIVK. 

From  tl.t-  (111)  (il  tlie  dU,  :M.d  trcnn  tiie 
date,  sij^i.ity  tile  sarru  Uiing  ;  iini!,  :'C- 
cordiug  to  tlie  inlcnl,  :riv  either  inclu- 
sive or  exclusive.  Ihiintrs.  licvnulds 
114 

Vide  Jlppeul  6,  8. 

KXKCUTION. 

1.  It  is  doubtful  wlittlier  an  entry  cs'ii 
hf  sold  hy  excculioii.  Be},nulti's  i. 
yiinn,  106 

J.  Execution  upon  a  judgment  alter  a 
jear  iinci  a  day,  and  alitr  death  ojlhe 
(tet'eiidant,  wiilioui  takiii:;  any  scire  fa- 
cias, is  irregular  ;  and  it  in  the  County 
C"uri,  may  oe  avoided  \>\  wi  it  oi  enor. 
Of  if  It  was  ill  the  Siipt lior  (jiiiirt  t'y 
evidence  in  ejtciment,  if  land  was  snl  i 
under  it.     Perkins  v.  Bullfnger,     267 

?>.  A  dtbior  cannot  diipose  of  his  pio- 
peity  til  avoid  an  t  xi  cutioii  atier  it  is 
Ibsueil,     Antotd  v.  Bell,  396 

4.  Extcu'ioii  shall  not  issue  duting  llu' 
tenn,  at  which  the  judfjmer.t  w.is  en- 
tered, although  the  dtlcndiiit  may  be 
about  to  move  away.  Betiifurd  v. 
Sunders,    •  ii'J'J 

Vide  /■aitds — Judg^nent  2. — Fine  1. 

I'.XKCUTOUS. 
Vide  Administraiurs   and  Executors  6.  7, 
8,  13,  14,    15,  17,  18,  19,    20,  21,  2-', 
23,  25. 

EXTINCiUISIIMENT. 

The  givinjf  lil  a  note,  is  no  t  xtinKuish- 
metitofthe  prior  c:iuse  of  .ictiun  ;  and 
where  there  is  a  count  upon  a  note, 
as  well  as  the  ijener  d  counts,  a  recov. 
ery  may  be  had  upon  the  ^eMer:il 
counts  ulthoiip;h  the  note  is  alle;;cd 
to  be  lost,  Kiddie  sur  pariuf  liamsuti 
li  Kiddie  V.  Debrutx,  420 

EXTORTION. 

1.  In  an  indictment  for  ex'ortinn  in  ta- 
king' mote  than  the  legal  fee,  it  is  ti<i 
excuse  that  the  defendant  di<l  the  act 
through  mistake  or  under  improper  ad- 
vice.    StcUe  v.  Vickuis,  40C) 

Vide  Indictment  4,  5. 

FHAUDS  &  FRAUDULENT (;ONVEY 

ANCES. 
1.   Friud  is  not  barely  to  be   suggested, 
but  iniist  be  p^'oved.     JJtit.  on  u'em.Bell 
V.   /m,  72 


2.  The  acts  agiiiiist  ccnve\nr,ce';  to  ric- 
traud  purthiserv,  me«ns  coijTey  nces 
h\  individi..:!s,  nt't  i;-r..nts  trom  the 
bUiie.     Bevtoids  i.  Flihn,  106 

S.  A  d.^piibition  'if  ai'>  l^ari  ot  Ills  pro- 
perly to  a  child  b\  a  f^htr  md  bled 
iTirre  than  he  is  worth,  will  he  pr  stim- 
(d  fnudulentj  unless  the  cliild  can 
priive  tlie  puichase  to  have  been  made 
li  r  ■•  lull  .III  tair  value  actually  paid. 
Jrnotd  V  Be/t.  S96 

4.  I'loperty  sold  rem  lining  in  the  pos- 
stssuin  of  the  vendor,  wiieri-  Iher  ■  is 
an  absolute  bill  of  sale,  is  evidence  of 
friiud  ;  so  is  the  not  registering  the 
bill  of  sale  till  lung  afier  it  is  m  de, 
coupltd  wiih  an  efTer  i.n  tli:  part  of 
the  vendor  to  antedate.  }Jvd£es  v. 
B/onnt,  414 

5.  Where  the  possession  of  a  chattel 
di  es  not  tollow  the  conveyance,  it  is  a 
st'iing  riicumstance  to  show  frsud, 
ihongli  it  inav  be  explained  or  remit- 
ted.    Cox  V  Jiicksun,  423 

FACTOR. 

,\  consigiKe  was  instructed  to  exchange 
the  coii.sigiitd  produce  for  that  of  Su- 
rinam ;  when  he  arrived  there,  he 
fiii.nd  it  impracticable  to  make  the  ex- 
change for  any  thing  but  sugar  and 
coH'ce,  which  Wtre  conlralKiiid  by  thu 
hiw  of  t!ial  ci.Uiltry  ;  but  still  such 
kind  of  tr  flic  was  usual,  and  thi-  law  ' 
ha<l  not  been  enforced  against  it  for 
many  yeais'.  The  consignee  ventured 
to  ID  ike  the  change  for  the  contritiand 
articles,  but  nwin^  to  an  attempt  to  en- 
force i  tie  law,  :i.-  had  to  resurt  to  a 
suiitcrlunejin  thed-nng  of  which  some 
of  t!ie  sugars  were  damaged  :  II.  Id 
that  he  was  not  responsible  for  the  loss. 
llai'an  v    Paine,  272 

Vide  Ilavwood's  note  to  ««r.  part's,  of  M'- 
JS'aiis'ldon  V  Co.  v.  Muore,  190 

FALSE  .lUDCiMENT.  VV  HIT. OF. 

1.  A  writ  of  false  judgment  diifers  Iroin 
the  assignment  of  errors:  it  is  to  be 
obtained  upon  affidavits  and  may  hu 
opposeil  by  affidavits,  on  the  other 
side.     Rliodts  v.  Bro-itinlow,  16 

2.  Inawrtof  false  judgment,  after  a 
sci.  Ja  to  till-  defendant  to  come  in, 
&i .  if  the  defendant  dues  not  appear, 
the  jud.nieni  will  be  reversed  wiihout 
en'iiiiiiii  into  the  facts,  if  Tacts  .nly 
ar.  as-igned,  but  if  matters  ot  la'.»  are 
asiifnied.lhe  Court  will  lookiitto  thent 


594 


INDEX. 


to  see  whether  it  is  ;)ioper  or  not  to 

reverse    the   judgniLiH.     .iiionymout, 

398 

3.  A  writ  of  recordari  wns  innveci  for 
Hatwood  Jutlije.  A  writ  ol  falsf  judg- 
ment  is  a  writ  of  riglit,  and  we  ciniiot 
deny  it.  It  is  like  a  writ  of  error, 
vrhicli  the  party  may  bring  without 
leave  of  the  court,  Stone  Judpe. — 
The  writ  of  false  judgment  and  the 
writ  of  recort/on  are  not  the  same. — 
When  a recort/orj  is  moved  for,  wc  huve 
power  to  I't  fuse  it.    Aiwnymous,     469 

Vide  UaifWaod's  note, 

FEIiRY. 
Per  Haywood  Judece.  The  County 
Court  alter  eslablisning  one  ferry  tt  a 
particular  pl.ice,  has  no  right  to  estab- 
Jish  another  S)  near  the  forme  r  -s  to 
draw  away  its  profits.  li\xt  per  Stoke 
Judge,  the  County  Court  is  empow- 
ered to  establish  ferries  where  neces- 
sary, and  may  establish  two  at  the  s.ime 
place,  if  it  is  deemed  proper  to  do  so. 
Anonymous  45r 

FINE. 

1.  When  a  defendant  in  Court  is  order- 
ed in  custody  for  a  fine  it  will  lie  im- 
proper to  discharge  him,  and  order  a 

/.  fa.    to  issue  for  the  fine.     Stute  v. 
Johnson,  29o 

2.  The  Court  will  not  permit  independ- 
ent facts,  for  which  the  party  would 
be  liable  to  another  prosecution  to  be 
elven  in  evidence  to  enhance  a  fine. 
JJ.  293 

GIFT. 

1.  In  a  gift  of  personal  chattels,  a  sym- 
bolical delivery  is  sufficient.  Arrini(ton 
V.  Arrington,  1 

2.  If  a  lather  at  the  lime  of  the  d:m;;h- 
ter's  maniige,  puts  i  negro  nr  otiu-r 
chattel  into  th'  possession  oftlu'  son- 
in-ln.v,  it  is  lirima  facie  a  gift.  Farrel 
T.  Perry  2 

3.  Negroes  sent  with  a  d:itighter  upon 
her  marriage,  or  with  a  jon  in-law  and 
daughter,  h  prima  facie  evidence  of  a 
gift  ;  and  if  the  pioperly  rcmiiiisany 
length  of  time  wi'h  lb'  m,  very  STong 
proof  will  be  required  to  show  that 
only  1  loan  ami  nm  a  j^ilt  w.is  inleul- 
ed      Curler's  ix'rs  v.  Ilutlaul.         97 

*.  The  wordciiditoi-,,  nt'ii  .,;i  o  17b4 
ch.lO,  S(  c.  7,  rt-spict'.ig  parol  gilts  of 
slaveli  means  us  well  those  who  have 


become  creditor's  since  the  parol  Iraus- 
fer,  as  thosr  who  were  such  before. — 
Knight  &  irife  v.  Thomas,  289 

5.  .\  p^irol  gilt  IS  good  netween  the  par- 
ties notwithstanJiiisj  the  act.     III.  289 

6.  Where  a  father  upon  tlie  marriage 
of  his  daughter,  sends  negroes  or  oth- 
er property  with  her  in  marriage,  it  is 
prima  facie  »  gift.  Parker  U  Wife  v. 
Philip!,  451 

GARNISHEE. 
Vide  Certiorari  1 

GRANTS. 

1.  A  grant  from  the  State  without  the 
seal  appendant  offered  in  evidence. — 
Judge  Williams thoughtthatthe  deed 
was  destriiyed  by  the  seal's  being  torn 
off;  but  Judge  AsHF.  was  clearly  of 
opinion  that  where  an  interest  once 
passed  and  vested  in  the  grantee,  the 
destruction  ol  the  deed  could  not  af- 
fect the  interest  before  passed  by  it. — 
Steele  v.  Anthony,  98 

2.  The  act  of  1777  ch.  1,  sec.  9  voiding 
titles  &c.  means  void  as  to  the  state 
which  proceelsloavoidby  scire  facias. 
Reynold's  v.  FUnn,  '  106 
3.  Grants  troin  the  Stale,  cannot  bea- 
voided  for  any  cause,  in  any  other 
mannerthan  by  proceedings  in  a  court 
of  Kquity      Sears  v.  Parker,           126 

4.  It  is  the  first  patent  ()rgr.int,  and  not 
the  first  entry  in  the  l:ii.d  office,  that 
gives  the  best  title.  Seekright  on  dem 
of  Wright  &  Wife  v   Bogan,         176 

5.  In  the  case  of  lapped  puems,  where 
both  are  in  possession  of  their  res- 
pective trjcts,  but  neither  actually 
settled  on  the  lapped  part,  tiie  oldest 
grantee  will  be  considered  as  having 
the  legal  possession  of  that  part. — 
Id.  176 

6.  When  two patentsor  giantsbear  date 
on  the  same  day,  the  number  of  the 
p.Htents  must  determine  ih  ir  priority. 
Den.  on  dem.  Andrews  v.  Mulford,  311. 

7.  In  an  ejectment,  ihe  first  grani  is  ihe 
only  thing  to  he  inquired  into,  with- 
out any  regard  to  tlie  entry  or  survey, 
Dickey  v.  Hooileupile,  353 

8  Haywood  Judge,  was  of  opinion, 
that  a  State  gr^nl  of  lands  which  had 
been  gtantC'l  by  Lord  Granville,  and 
which  hadescheated  to  tlie  State,  was 
void  as  not  being  unappropriated  lands 
and  that  this  tact  might  l>c  shown  in 
the  action  of  ejectment  ;   but  he  re- 


595 


served  the  question.       University  of 
North- Car  Una  v.  Juhnatan,  373 

9.  In  Hicaveat,  a  verlict  was  IduiiiI  njainst 
the  plaintiff',wliich  wasco  firmed  in  the 
County  Cout,  before  winch  ti  me  how- 
ever thr  plaintiff  had  ob'.uined  a  givmt 
from  I  he  St«te  for  the  l;ind,  and  now 
in  the  SuperiorCourt.il  was  tield  that 
the  grant  could  not  be  impeached  at 
law,  but  as  the  defendnnt  appeared 'o 
have  had  the  jusiice  of  the  case  on  his 
side,  he  shall  'have  the  costs  of  the 
caveat.  Cupples,  Guarihan  of  allien  v. 
456 

10.  St  ite  grants  cannot  be  avoided  by 
evidence  in  ejectment  ;  recourse  must 
be  had  to  Equity  for  tl);<t  purpose. — 
Foreman  v.  Tyson,  496 

11.  Where  two  p^tenlsbearthe  same  date 
Hatwood  Judge  tho'i  the  priority  of 
number  raipht  decide  the  preference 
in  the  absence  of  the  other  proof,  but 
Williams  .hidpe  contra,      lil.         495 

Vide  Frauds  and  Fraudultnt  conveyances. 


GUARDIAN. 

Since  the  act  of  1762,  ch.  5,  the  Courts 
may  exercise  a  discretionary  power  in 
the  appointment  of  guardians.  Mills 
V.  M'Misier,  303 

IIUSB,\XD    AND  WIKK. 

1.  A  note  given  to  feme  covert  living  se- 
parate belongs  to  the  husband  nllho' 
he  never  assented  to  the  gilt.  Sivann 
V.  Qauge,  3 

2.  Objected  by  counsel  tint  the  wife 
ougM  to  be  joined  with  the  husband, 
wh  re  he  i-  sued  in  her  rijjhl  as  admin- 
istrator.   Moore  V.  Sulrilt's  adm'rs.    16 

3.  If  the  husband  dies  before  adminis- 
tration taken  upon  his  wife's  chases  \n 
action,  her  adminislr.tor,  and  not  his, 
is  the  proper  person  to  administer  them, 
but  the  hus  land's  representation  will 
be  entitled  to  the  surplus  after  the 
payment  of  her  debts.  IVhitliie's 
adm'rs.   v.  Prazier,  275 

4.  Ni  groes  are  devised  to  wife  for  life, 
and  after  her  death  to  their  children 
cquiliy  ;  one  of  thedaughtersmarries 
I,,  who  dies  leaving  the  mother  and 
d  ught  -r  living  ;  the  mother  dies  and 
tlien  !  he  danghter  marries  again.  Held, 
th:!tihf  executors  of!,,  and  not  the 
second  l.nsband,  are  .'ntiil,-,!  toth"  ne- 
groes Q(((Tt'  by  HiiweoD  iewis  v. 
Hynes,  278 

Nide  Evidences.  16.      m^iMj  8. 


hand-writiNg. 

Vide  Evidence  3,  4,  S,  9,  ll,  1  5,  23.— 
Witness  5. 

IIORSK-STEALING. 

Vide  Larceny  I.     Evidence  24. 

INDICTMENT. 

1.  In  an  indictment  for  burglary,  a  charge 
for  larceny  may  be  mide.  and  a  con- 
viction for  the  larceny  may  be  had,  al- 
though the  party  be  .cquitled  of  the 
burglary.     State  v,  Graham  12 

2.  An  indictmeiii  for  trespass  in  takings 
and  carryinif  away  negroes  out  of  the 
possession  of  one,  may  be  sustained, 
although  it  may  have  been  done  at  the 
command  of  the  party  who  had  the 
real  title  to  the  property.  State  v. 
White,  13 

3.  Submission  c.innot  be  made  upon  one 
count  without  all,  unless  not.  pros,  is 
entered  as  to  the  others.  Slate  v.  Ho- 
berts,  176 

4.  An  indictment  for  extortion  in  the 
County  Court,  stating  the  day  on  which 
the  ort'cnce  was  committed  in  figures, 
and  also  omitting  the  word  extorsively 
in  charging  the  taking  the  uiil  wlul 
fee  mav  be  supported  under  the  act  of 
1784,  ch.  31,  sec.  3.  State  v.  nick, 
ins,  406 

5.  It  is  not  necessary  to  state  what  the 
lawful  fee  is,  in  an  indictment  of  this 
kind.     Id.  4C6 

\"ide  JIffida-vit  1.     Jurisdiction  3 

INFANCY. 
A  deed  for  land  was  executed  by  an  in- 
fant ;  after  arriving  at  full  age,  he  us- 
ed these  words,  «'  I  will  never  take 
advantage  of  niy  h.ivingbeen  an  infant 
at  the  time  of  executing  the  deed,  and 
it  is  my  wish  that  you  should  keep  the 
land."  These  words  ratify  tie  con- 
veyance made  by  the  infant,  notwith- 
stinding  that,  ^fter  he  used  theirt,  he 
conveyed  the  1  ind  to  another.  Houser 
v.  Jleynolds,  143 

INJUNCTION. 
A  and  R.  seltleM  accounts,  and  a  bal. 
ance  of  £47  was  found  due  t')  R.  and 
A.  signed  a  writing  to  that  i  ffect, 
which  B  assigned  to  a  third  person, 
who  sm  (I  ami  recovered  judgniei.r— 
A  fil'-d  a  bdl  for  injunction,  setting 
forth  errors  in  calculation,  m  '■  -ta'ing 
that  by  the  agrc-ement  of  the  parties, 
the  paper  which  he  had   signed   wai 


596 


not  to  be  deemcl  a  promissory  note. 
Tlif  :inswer  'ie.neil  all  the  pans  of  llio 
bill  but  h'  f-rrois.  Hatwoud  Jtnlgff, 
con'-'en'ed  \vit!i  Willh.ms  .liulgf-,  iha( 
the  injtiiict'uni  should  be  clissolvfd  us 
to  .ill  bill  ihc  errors,  but  HiTWO'in 
sai.'  th;it  it  should  be  dissolved  in  A;o 
for  the  l.iw  would  have  admitted  i,i  ry 
(letsnct-  w'hicli  could  In-  mad-  t  i  die 
rec(iver.v  on  the  instrument  ;  .stiiit 
it  eitiiei  »as  unnegotiable  in  its  nuture 
or  the  assignie  li;id  ;i(itice  of  tlie  de- 
fence, previous  to  the  assignment. — 
And  if  the  assii^n-e  had  not  sucit  no- 
lice,  there  coidd  be  no  det'enne  either 
at  law  1)1  in  •quiiy  where  the  insti'ii- 
mcni  was  uegolKd)!!  . 
Vide  Affidavit  2      Equil;)  2.  9,  10. 

INN-KF.EPKR. 

A  common  inn-keeper  is  li;ible  for  any 
lo^s  wliich  ins  guest  m-.iv  sustain  in  his 
property,  fXC'pt  it  he  by  the  agency 
of  a  s' want  or  companion  of  the  guest 
hims'.-lf.  or  when  the  guest  is adinii  ted 
up"n  t'  rms  in  case  the  inn  is  tiill. — 
Quititon  V.  Courtney,  40 

INSOLVENT  \n:r,  row. 

1.  Ten  days  notice  must  be  given  to 
tlie  creditors  before  taking  ih'-  insol- 
vent dfbt.r's  oalh.  Kennedy  a  Ca 
V.  Fairman,  4U8 

2.  An  insolvent  debtor  slnill  not  he  dis- 
chiiged  if  he  will  not  account  for  pro- 
perty proved  to  have  be  n  in  his  pos- 
session shortly  before,  ami  sold  to  one 
who  had  acted  ;<s  his  partner  in  trade. 
Hole  to  Hit  same  case,  4i)8 

.*>.  A  discharge  under  the  Insolvent  debt- 
or's act,  ordered  by  the  proper  offi- 
cers, will  be  presumed  to  Imve  been 
I'eguiarly  done,  until  Hi  contrary  le 
slunvn.      Pearle  \ .  Fohome,  413 

4  Under  the  tir.sl  insolvi  nt  :ict,  the  de- 
fendant was  discharged  only  as  to  those 
who  had  commence^!  suit-  aicainst  him 
and  had  notice  given  ihem  .f  the  debt- 
or's p   ttion.     id.  413 

Vide  Bitts  oj    Exchange,  &c,  1. 

INTAII.S 

1.  Tenant  in  tail  in  i.maindir,  is  enli- 
title.l,  under  the  :.ct  oi  1784,  lo  the 
fee  Quire  hy  Hatwood  J'atteraon, 
V.  Patterson  (J  uthers,  163 

2.  Ii  -.ci  111  1784  .ii  22  see.  5,  wll 
ba.  a  remaindc  ikpen  laii  upon  an 
estate  tail  In    possession  oftenRnl   in 


tail  at  the  lime  of  passing  the  itct  — 
Den.  on  the  dent,  of  Lane  v.  Davis,  277 
3.  lenant  m  tail  sells  lands  in  1778,  and 
dies  leaving  .1  larger  estate  nt  land  to  his 
son,  the  present  plaintifT;  he  is  bound 
by  the  w  .1  ranty  of  his  ancestor  and 
assets  descended.  He  is  also  bound 
hy  th  exjiress  words  of  the  act  of 
1784,  ch.  22,  sec.  5.  .Minge  v.  Gil- 
inour,  279 

INTERKST. 

1.  Whenever  one  person  has  the  money 
of  aio  h'-r  and  knows  what  sum  he 
ouglit  to  i^ay,  h  •  mn~t  pay  inter'  st  for 
the  same    Slate  v    Blount  &  Blount,  4, 

2.  Wher  a  persun  indebted  to  another, 
kn  'Ws  w.iai  sum  he  is  to  pay,  and  llie 
time  he  is  to  pay  it,  he  must  pay  inter- 
est. Ifitnt  V.  Jucks  and  London,  sur. 
parts  iic  173 

3.  Interest  is  be  calculated  upon  the 
pr  iicipal  fioin  the  time  of  its  com- 
m^jnoemen'  up  t';  thi  first  payment ; 
if  the  payment  just  eqnals  the  interest, 
it  must  exiiiijiuish  it  ;  if  it  is  more,  it 
must  after  extinguishing  the  interest, he 
atjplled  towards  the  diminution  of  the 
principal  ;  if  it  is  less,  the  balance  of 
interest  not  ilischarged  by  it,  must  be 
kept  for  till  next  payment.  Interest 
must  then  be  calculated  upon  the 
principal  remaining,  t"  the  time  of  the 
next  payment,  which  is  lo  be  applied 
in  the  fifst  place  to  ihe  wliole  .>f  the 
interest  then  due  ;  ami  so  toiies  t^oties. 
Bunn  V.  Moore's  executor,  279 

Vid  ■  administrators  and  executors  5. 

INViNIOUY 

V.dt  Administrators  &  Executors,  24. 

JOINT  OHMCOUS 

1.  Under  ihe  act  ol  1789  ch.  57,  sec.  5, 
ilie  first  part  of  tlie  section,  the  action 
is  I"  be  brought  against  both,  the  sur- 
vivor and  tie.  adniinistra'.nr.Dt  the  le- 
c  ased  joint  ol^ligor.  Brown  Camp- 
bell h  Co    V    Clary  SJ  Craig  adm'r.  107 

2.  liy  the  act  of  1789  ch  57,  s>  c.  5,the 
surviving  ubligor  anil  the  i  xecnuns  of 
the  di-c  ised  niay  be  sued  joiii'l>  — 
Davis's  executors  v.  H'ilkimon  Si  uthen, 

334 

3.  \  writ  issued  .sgainsl  two  jointiv,  and 
One  plead  in  abat'ment  i  Plaintiff  was 
suffered  i"  tak  judgineni  agai.st  the 
o  1,1  T.  Quere  ••}■  lUrwooD.  Anony- 
muus  ,  487 

\\t\ii  Abatement.  1.     Process. 


INDEX. 


597 


JOINT  OWNER. 

Vide  Trover  4. 

JUDGMKNT. 

1.  Ajudgmem  by  default  upon  a  tobac- 
co bond  is  not  final.  Den  on  Jem,  of 
Sell  V   Hill,  72 

2,  A  judgment  (  final  )  binds  land  fronfi 
the  time  of  its  renditKin,  as  to  piirciia- 
sers  from  tlie  Defend  nt,  but  not  so  as 
to  defeat  the  title  <f  ont  pnichasinp; 
undei'  the  execution  of  a  subsequent 
judgm-nt.  As  between  credit'jrs,  it 
is  not  the  fiist  judgment  but  the  first 
exi  cution  that  gives  the  preltrence. 
/(/.  72 

0.  Kecognizances  bind  I^nds  from  tl\e 
time  at  which  they  are  entered  into  ; 
but  a /?. /a  only  from  its  teste.  Slale 
V.  Mag-iiiss.  '  99 

Vidi-  .Issumpsil  .Action  of,  1.  .appeal,  4. 
Assignment,  2. 

JUUIS  DICTION. 

1.  A  plea  to  the  jurisdiction  of  the  court 
under  the  act  of  179.".,  c.  19,  is  tu  be 
decided,  as  to  ihe  amount  for  whicli 
the  suii  is  biouglit,  only  by  the  writ 
and  ileclaralioii.  .illen's  executors  v. 
Stakes,  122 

2.  Indictment  cnntainin;^  three  counts, 
thi  first  of  whicli  the  cmirtiiad  no  co,^- 
nizince  cf  To  sul)mit  on  the  first 
coum,  (the  oihers  not  to  be  con  i.  er 
cd,)  would  oust  tile  court  of  jurisdic- 
tion.    Utale  V.  Itobtrts,  176 

JURY-  AND  JUUORS. 

1.  After  a  verdict,  in  an  indictment,  it 
is  too  late  to  ol>jPCt  that  one  of  the 
jnrnrs  was  not  a  freeholder  in  this 
State.     Slate  \.  Greniwooil,  l^l 

2.  If  a  jury,  in  a  capiial  case  separate 
witlioiit  returning  a  verdici,  the  pr:- 
soner  sliull  not  be  tried  apain  tor  that 
olfence.     Stale  v.  Garrigues,  241 

0.  The  act  ot  1779,  Jiev.  c/>.  157,  sec  2, 
respectini;  Ihi  appointmcni  of  jurors, 
is  only  directnry,  and  does  not  ap|dy 
to  grand-jurors.     Slate  v.Old/iam,  450 

,IUS  POSSESSIONIS. 
Vide  Ejectment  1. 

LANDS. 

1.  Per  Macat,  Judge.  The  statute  of 
Sih  George  II,  c  7,  proviiles  for  the 
sale  of  lands  for  debts,  and  the  making 


them  liable  for  all  just  debts  in  the 
hauls  of  the  heir,  but  dots  not  alter 
the  (list inci  ion  between  real  and  per- 
sonal est  .te  ;  real  descends  to  the 
heirs,  personal  ifoes  to  executors  ;  the 
land?  in  the  hands  of  the  heirs  cannot 
be  afiected  by  a  judgment  against  the 
executors,  no  more  limn  the  personal 
estate  in  the  hands  of  the  execuiors 
cau  be  iiffecied  by  aju  Igment  against 
the  heirs.  Bui  ptr  Ashe,  .Tudgc  :  the 
statute  mesnt  to  mjke  limds  liable  to 
the  payment  of  debts  ;  and  is  to  the 
payiBent  ol  debts,  iiretobe  proceeded 
against  as  personal  ch  ttels  :  Thev 
descend  to  the  heir  chargeable  with 
all  such  debt"  as  in.ay  be  recovered  a- 
gainst  1  he  e^iecuuir  Williams, Judge, 
on  a  previous  ca-e  expressed  m  opin- 
ion sipiiiiii'  to  Macat's.  DeJi  on  clem, 
of  Baker  v.  IVebb,  43 

Vide  Scire  facias,  1. 

LARCIiNY. 

1.  A  horse  stolen  in  one  State  or  Terri- 
tor\  Hnd  carried  into  another,  will  not 
make  it  a  felony  in  the  latter  State. — 
Slate  V.  Broivn,  100 

2.  A  special  verdict  which  states  the  fe- 
luniiius  taking  in  one  State,  and  the 
taking  coiitinuetl  into  another,  cannot 
be  supported  .is  a  felonious  takii'g  ia 
the   latier       Iil.  lOO 

3.  HATWiion  and  W  illiams,  Jueges, 
were  f  opinion  that  the  taking  wliich 
IS  to  constitute  u  f  lony.  musi  be  a 
tres|  ass.  .\she  and  Macat,  Judges, 
thoui;!.!  a  iiorujw  mi;  wiih  a  fraudulent 
inteiii,  m.,;lit  >e  t  e  round  of  a  f  lo- 
nious  .it.     State  v.  Lang,  15-1 

Vide  Indictment,  1. 

LEGAt  Y. 

A  devise  to  the  Pi  .iitiff  of  cash  suffici- 
ent in  the  o|iiniiin  if  the  executors  not 
exceeding  £1000  lo  purchase  .  iract 
of  lnnd  :  i'l  a  foilnwin)'  cl.iuse,  the  fol- 
lowing devise,  *'  1  give  lo  iny  wife  dl 
Ihe  iie:.:roes  I  ootaineil  n  marr  age 
with  her  and  their  iiicri  ise  :  dso  ,,ne 
third  of  slock,  &c  md  iiit  residue  I 
give  to  my  cli  Iciren  by  my  .rest  nt 
wife."  The  esti.l  istxhuisud  ex- 
cept the  negroes  cuniiUid  m  ttie  re- 
siduary clause  to  the  wdV-  and  chil- 
dren, and  ilebls  to  a  l.irge  amount  re- 
m.iin  unpaid:  Hlauitiff'cl.iim.s  li  s  iiiou- 
sand  puunds.   Decided,  that  the  Plaiit> 


598 


tiff's  legacy  is  pfeneral,  but  slill  enti- 
tled to  be  p  id  >iu  of'tlie  residuary 
part  d.  vised  t(i  the  wife  and  children, 
whif:!;,  is  ■<  rrsiduum,  can  ncvt-r  be 
spec'fic  :  tlia;  the  cliildren's  part  is  to 
be  first  ;ip;.l.eil,  as  the  \*ifi''s  pai't,  the' 
general  nd  residuary  as  t"  the  Plain- 
tiff, h  specific  in  rt-fereice  to  'heirs  : 
thtt  s  111  ■  testator  in  mentioning  the 
sum  ol  £1000 tor  the  oliii.tiff,  contem- 
plated ;i  full  •:'iij(iym  ni  by  the  lej;a- 
tet  s  of  their  respi-ctivc  legacies  of 
slaves:  therefore,  ondcr  the  discreti- 
onary po  vcr  j^ivc-n  to  tlie  ex':'Culors 
of  fixing  thi  ainouni  to  be  paid  to  the 
Plai  tff,  his  testacy  shall  be  aljated 
from  £1000  in  proportion  to  the  valne 

,  of  tiie  negroes  that  sh:dl  be  required 
to  pay  the  debts.  Nash  v.  Siash'a  ad- 
mr's.  228 

Vide  Account,  1. 

LIEN. 
A  boat  is  drifted  away  from  a  landing, 
and  tnken  up  by  a  slriii  grr,  who  sells 
todefeiidunt  held,  that  .he  stranger's 
rigi't  to  salv^ig  ,  is  a  demand  upon  the 
plaintiff,  to  be  enforced  by  detention, 
and  th  it  ilie  right  is  noi  transferable 
to  a  poich.isir  of  the  ju-operty.  Wins- 
low  \    Watlcer,  '  193 

LlBE'UMTlAEMENTUMjPLEAOF. 

Vide  Havwood's  i;ote  fo  Les  Y.Ashley, 
page  186. 

LICENCE. 

Vide  Nuisance,  3. 

LIMITATIONS,  STATUTE  OF. 

1.  Per  Williams,  .ludge.  An  ackiiow- 
ledgenn  111  made  to  an  executor  will 
prevent  ilii  operation  ol  th.  sta  uie  of 
limitations,  as  well  as  if  niau  to  the 
ttsiatnr.  Hot  A^a^,  Judge,  contra. — 
Billcvoa,  MJin'r.  v.  Bugan,  13 

2.  TIk  ar-tii  1  mitalii.ns  willnot  run,  but 
from  the  lime  th  t  it  IS  knoW'  where 
th-  ch:itt -I  ',  and  that  it  is  adversely 
claimed.  Berry' sAiltn'rs.\.  Pullam,l6 

3.  Ackir>wledgiiig  ;h'  ad.  uti-.ii'.t,  od. 
is  not  au  aiknowleoginenlol  iht  ilebl, 
so  as  U'  pr  vent  the  ffi^  i  uf  tiie  st  i. 
tute  of  miiaiiiMis.  Ferguson  &  Hife 
V.  T.iylor,  20 

4>  Smd  In  tiie  Ju'lg  ,  arguemlu,  tli.'  the 
st.ituie   of  lion  t:     >s  runs   Irom    toe 

time  tbe  Plamtiif  knew  where  ihe  ne- 


groes were,  and  that  the  Defendant 
cl.Hime  I  them,  although  no  demand 
had  been  made.  Elwick's  ex'rs.  v. 
Rush,  28 

5.  Tlie  statute  of  limitations  runs  fi-om 
th'- d  le  of  the  last  article  in  an  ac- 
count, where  the  account  has  been 
runi.ing  on  from  its  commencement; 
but  where  it  is  once  deserted  or  ended 
between  the  par'ies,  then  from  that 
time.  Sur.  Parl'rs.  of  McNaughton 
&  Co.  V.  Narris,  &c  216 

6.  These  words  in  a  I  tter  from  a  Defen- 
dant to  the  pliimiff,  "  1  would  ratrter 
come  to  a  settlement,  although  I 
should  allow  the  account  as  insisted 
on  by  yon,  than  wait  the  event  of  a 
law  suit,"  ate  sufficient  to  take  the 
case  out  ot  the  statute  of  limitations. 
Ferguson  v.  Fitt,  239 

7.  The  words  of  a  will,  directing  all  just 
debts  to  be  paid,  will  prevent  the  bar 
of  the  statute  of  limitations.  Anony- 
mous, 243 

8.  When  the  aci  of  limitations  once  be- 
gins to  run,  none  of  the  impediments 
mentioned  in  the  act  will  stop  its 
course.  I)en  on  dem,  of  Andrews  v. 
Mulfrd,  311 

9.  I  ie  statute  of  limifalions  begins  to 
run  trom  the  time  the  negroes  come 
into  the  pessession  of  the  Defend.mt, 
unit  ss  entrusted  with  tliem  by  the 
Plaintiff  for  an  indefinite  time,  (for 
then  the  act  will  not  begin  to  run  till 
demand  made)  or  unless  the  Defend- 
ant removed  himsell  so  that  the  Plain- 
tiff could  nut  find  him  to  bring  suit, 
or  had  tlie  negroes  without  the  know- 
ledge of  the  Pliiintiff.  Elmore  v. 
Mills,  359 

10.  vVhen  the  act  of  limitations  begins 
to  run  against  afemesole,  her  marrying 
Will  not  suspend ilsoperaliun.  Anony- 
mous, 416 

11.  No  person  can  plead  the  statute  of 
limitations  except  the  defendant,  as 
for  instance,  a  g.iriiishee  Caiinoi.— 
Anonymous,  459 

12.  Tlie  st.vitite  of  limitations  will  run 
a..:ainst  the  Plaintiff,  alilioughthi  De- 
fendant may  be  out  of  the  couiiIia. — 
/(/.  459 

Vid.  Possession.  1,  2,  3,  4. 

LIMI  lATION  OF  ESTATES. 
Vide  Slaves,  1,     Deed. 


INDEX, 


599 


MAIMING. 

1.  Malice  aforetlviu  lit  is  express,  or  lo 
be  implied  fr.  m  circumstances:  intent 
to  maini  nr  disfij^urv,  may  likewise  be 
implied  from  circumstances:  ;ind  it  is 
not  nece>-sary  to  prove  antecedent 
grudges,  ihreatenings  or  an  express 
design.     Slate  v .  Ir-wm,  112 

0.  Wilt  n  an  o»tras;e(ins  act,  as  a  maim, 
isproved,  the  law  presumes  that  it  was 
done  with  (hat  disposition  nf  mind, 
whicli  Ih.-  law  requires  to  constitute 
Ruili,  until  the  cortraiy  is  shewn. — 
Slate  V.  Evans,  281 

MASTER. 

1.  The  master  does  not  lose  his  wages 
by  the  loss  of  the  vessel.  Fergvson  v. 
Fiit,  239 

■2.  Making  a  man  master,  and  giving 
him  command  of  a  ship  is  ipso  facto, 
giving  him  power  to  take  a  load  for 
freight  in  a  foreign  port  ;  and  his  con- 
tract, in  such  case,  binds  the  owner. 
Murfree  v.  Redding,  276 

MONEY. 

1.  The  possession  of  money  gives  the 
property  of  it,  as  to  any  disposition 
which  the  possessor  may  make  of  it. 
Qninton  v.  Courtney,  40 

2.  Bond  for  payment  of  £100  Virulni . 
money,  to  be  paid  in  Hroc.  at  33^  per 
cent.  Jurv  gave  a  verdict  for  the  equi- 
valent in  the  present  currency.  But 
Per  Curiam — the  verdict  should  he 
for  £133  6  8.  But  upon  a  second  tri- 
al, the  Same  verdict  being  given,  the 
counsel  ilid  not  press  it  •ny  farthtv. 
Pcete's  ex'rs,  v.   JVebb  s  aclmr's.        96 

3.  Whoever  has  the  possissmn  of  mo- 
nev,  has  the  property  of  it.     C/ar>/  v. 

Allison,  "ill 

4.  Money  deposited  by  one  person  to  be 
paid  to  aiiotlier  upon  a  contingency 
cannot  be  recovered  b',  thatoilur,  but 
must  be  sued  for  by  the  person  who 
makes  the  deposit.     Id.  Ill 

5.  Payments  made  in  ihe  depreciated 
currency  |irior  to  1783,  shall  discharge 
the  same  numerical  sum  as  their  nom- 
inal value.     Annnymotts,  183 

6.  In  an  action  of  covenant  lor  a  certain 
sum  in  Silver  or  Spanish  mdled  dol- 
lars, the  jury  are  at  liberty  to  give  the 
real  value  in  our  curvenc.  as  ilamagts, 
notwithsta.idiag  tlie  act  of  1783,  c-  4, 
«.  2.     WinsloiD  V.  Bloom,  '2\7 


7.  In  an  action  of  debt  two  things  are 
recoverable,  tie  numerif  al  sum  men- 
tioned in  the  bond,  and  damages  for 
the  detention  of  the  debt  ;  and  these 
damages  are  generally  the  inien-st  of 
the  money  mentionid  in  the  bond; 
but  if  the  currency  of  the  country  is 
depreciated,  the  jury  may  give  such 
damages  as  will  afford  the  Plains  ifl'ihe 
real  value  of  his  debt  &  interest  tliere- 
on.     Jliionymous,  354 

Vide  Excliange,  course  of. 

MOUTGAGE. 

After  a  conditional  decree  offoreclosure, 
but  before  absidute  decree  onttved,  a 
person,  who  h;ts  acqtdred  an  interest 
in  the  property  mortgageil,  may  be 
allowed  to  come  in  and  file  a  bill,  in 
order  to  get  the  benefit  of  redemp- 
tion.    Anoiiynvjus,  482 

MURDER. 

1.  A  motion  to  postpone  a  trial  for  mur- 
der on  account  of  the  great  public  ex- 
citement, was  refused.  State  v.  JVor- 
m,  429 

2.  WriLiAMs  and  Haiwood,  .ludges, 
differed  as  to  the  question,  whether  a 
juror  could  be  asked  on  oath  whether 
he  had  expressed  an  opinion  unf  ivora- 
bly  to  the  prisoner.     Id.  '    429 

3.  A  person  who  was  violently  abused 
and  beaten,  made  his  escape,  ran  to 
his  o\vn  house  eighty  yards  off,  got  a 
knife,  rin  bark,  and  upon  meeting 
with  the  deceased,  stabhed  him.  It 
seems  that  he  is  oidy  guilty  of  man- 
slaughter. If,  upon  the  second  meet, 
ing,  the  prisoner  had  disguised  the 
fact  of  having  a  weapon,  for  the  pur- 
pose of  inducing  the  deceased  to  coine 
within  his  reach,  the  killing  would 
have  been  murder.     Id.  429 

NEW  TRIAL. 

1.  Verdict  asjansl  evidence  is  not  suffi- 
cient f<ir  a  n.  w  trial,  if  justice  i<  dune 
b^  it.     Billows,  Aclm'r   v.  Bogan,     13 

2.  if  it  appears,  upon  another  trial  of 
tile  same  cause  in  which  the  perjury 
is  assigned  to  have  been  -committed, 
that  the  person  convicted  'lid  not 
swear  falseK  in  the  first  trial  of  the 
cause,  a  new  trial  will  he  granted  liitn 
uie.n  thai  ground  St<ite  v.  Green- 
wood.  141 

Vide  .irlntrament  anil  Award,  4. 


600 


H<UEX. 


NONSUIT. 

Hatwoop,  Juilge,  a  nonsuit  may  be  ta- 
ken «t  any  lime  btiorc-  ihc  venlict  is 
recorded.  Biittlie  case  «ent  off  upon 
ano'li  r ground.  McNaiighton'sex'rs. 
V.  Mostly,  331 

NUISANCE. 

1.  An  action  for  a  iiiisance  will  lie  for 
every  fresh  continuance  after  a  former 
action.     v.  Deberrt/,  248 

2.  Only  nominal  damages  are,  usually, 
{riven  in  llie  first  action.     Id.  248 

3.  A  verbal  lice  nee  by  which  a  man's 
land  is  to  be  affected  is  not  good. — 
Id.  248 

4.  The  action  on  the  case  for  a  nuisance, 
lies  for  any  ove'flowinjr  of  the  Plain- 
tiff's land  by  another.  Carruthers  v. 
Tillman.  501 

5.  In  thi-.  action,  the  first  sftit  is  gene- 
rally  to  try  the  qui-stion  of  nuisance  or 
not,  and  onh  the  real  damages  sus- 
tained are  to  be  given  ;  but  if  a  second 
suit  be  necessary  on  account  of  the 
continuance  of  the  nuisance,  •  xem- 
plary  ilamages  ar.  given  to  compel 
its  abatement.     Id.  501 

ORPHANS'  HOMDS. 

1.  Under  the  act  <it  1762  ch.  5,  sec  20, 
which  directs  the  l>on'S  taken  on  blind- 
ing out  orphans,  to  be  mide  with  the 
chairman  of  the  court  and  his  succes- 
sors, till  bond  is  good  althongli  tlie 
successor  be  not  n  'med  ;  •iiA  a  suit 
m:•^  "e  sust'ined  in  the  name  of  the 
successor.     Anonymous,  144 

2.  After  the  plea  of  conditions  peiforni- 
ed,  no  advantage  can  be  taken  of  any 
inconsistency  in  tlie  indentures  of  ap- 
prenticeship, as  where,  in  a  part  of  the 
instrument,  the  name  if  the  appren- 
tice is  put  for  that  of  the  chairman. — 
Id.  144 

PAROL    KVIDF.NCE  TO  EXPLAIN 

WRI  I'lKN  INSTRUMENTS. 

Vide  Assignment.  1.    Boundary,  14  7  8  9. 

PAYMENT,   PLEA  OF 

An  account  ayainsl  the  Plnni  iff  cannot 
be  given  in  evidenc«^  undtr  the  plea 
of  payment.  Evans  v.  JVoriia's  admi- 
nistrators, 411 

PERJURY. 

Vide  new  trial,  2.     Variance,  3. 


PI.ENE  ADMINISTR  AVIT,  PLK  A  OF. 

iVid.  Adminislralors  &  Executors,  14  20 
25.     Retainer. 

PARTIES. 

Where  a  person  cncerned  in  interest,  is 
slated  in  the  bill  tn  be  moved  away 
and  not  since  heard  of  for  many  vears, 
so  that  he  cannot  be  served  with  pro- 
cess, that  shall  be  a  good  reason  as 
between  third  persons,  fur  not  making 
him  a  partv  ;  and  the  court  will  pro- 
ceed  to  a  he:irlnsf  notwithstandin.L'. — 
Irtgrnm  v.  lanier,  221 

y]<\i- Money,  4:.  Equity,^,  Husband  ii 
XVife,  2.    Scire  facias.  2. 

PARTITION. 

Vide  Parlncrship,  3. 

PARTNERSHIP. 

1.  fJenf-ral  reputation  is  not  sufficient  to 
charir'-  '•  particular  person  as  a  part- 
ner. Ther^  must  be  some  conf  ssion 
of  his  or  s"mc  overt  act  to  prove  it. — 
Hunt  V.  Jncks  ii  I^ndon,  Sur.  Parts. 
&c.  173 

2.  Per  HAvwnoi),  .Judge.  Death  of  one 
partner  dissolves  the  parinersliip,  and 
a  clerk  or  agent  who  has  been  appoint- 
ed by  the  company,  cannot,  afic  r  such 
dissolution,  do  any  act  to  affect  the 
interest  of  the  company,  as  to  receive 
payments  &c  The  jnry  found  other- 
wise. AHde  Haywood's  nfte,  Surr'ng. 
Parts,  of  McNaushton  (J  Co.y-  Moore, 

189 

3.  A  partition,  in  a  paitnership  concern 
is  matter  of  right,  and  may  be  calf  d 
for  at  any  time.  Collins  v.  iHcktnson 
&  Allen,  240 

4.  All  asfignur  and  .assignee  are  both 
members  of  a  particular  ctimpany  :  a 
bill  is  made  payable  to  the  assignor, 
express^  d  to  be  for  a  debt  due  the 
firm  :  a  payment  to  the  comp;>ny  will 
be  a  good  payment  against  either  the 
assignrir  or  assignee  members  of  that 
compan\.     Blacks.  Biri,  273 

Vide  Set-off,  3.  , 

POSSESSION. 

1.  In  this  country  no  actual  entry  is  ne- 
cessary until  an  adverse  possession 
commences.  Den  on  dem.  of  Park  v. 
Cochran.  178 

2.  A  pnssi  ssion  Id  bar  an  entry  must  be 
a  continued  one.    /'/.  178 


601 


o.  An  actual  possession  is  not  necessary 
to  iirevent  the  iperntion  f 'he^latllte 
ot  limitations  until  an  adverse  posses- 
sion commences,  which  ixlverte  pos- 
session must  be  u  continued  one  for 
seven  veurs  to  b:ir  the  Pliiiiitifi'.  Ben 
onderi,  nf  Slude  v    Smith,  248 

4.  No  possession,  except  an  actual  orn? 
by  the  claimant  himself  cr  his  tenant, 
commenced  bnniijiile  uniler  a  p:Ueiit 
or  prant,  adverse  and  coniinwid  for 
seven  years,  will  give  title  under  the 
act  of  iimitaii'-ns.  Hen  on  dem.  of  Jin- 
ilrfjis\.  .Miilft/rd,  311 

5.  The  caveator  was  settled  upon  a  tract 
of  unappropriated  land  for  minyyeru-s 
and  supposed  the  land  in  dispute  to  be 
included  within  I'is  boundiries,  when 
in  fact  it  was  not.  TSe  possession  is 
stated  to  have  lieen  Ujiw^irds  of  twen- 
ty one  years.  It  was  decided  that  the 
caveator  v/:is  not  eniitled  bv  the  entry 
laws  ot  1777,  c.  1,  s.  16,  ami  1779,  c. 
7,  s.  2,  as  not  having  cl  limi  d  wiiliin 
the  lime  limited  by  the  acts — nor  by 
the  statute  of  limitations,  1715,  c.  27, 
s.  3,  which  applits  only  to  claimants 
under  patents — nor  yet  by  the  aet  of 
1791,  e.  15,  liinitini^'  the  claims  (,f  the 
State,  as  that  act  is  bottomed  ii|,on 
the  presumption  of  a  former  grjnt, 
and  s  not  applicable  to  vacant  lands. 
Jlnonymous,  466 

Vide  Money,  1,  3.    Grants.  5. 

VRINflPAL  AND   ACCR^SOUV. 

Command,  as  ■■pphed  to  priiicipal  and 
acc.-ssory,  means  the  ordr  rinj;  a  (liing 
to  he  done,  by  a  pirson  who  has  the 
legal  control  over  another,  as  a  master 
over  his  servant.     Stale  v.  Mann,      4 

PROCESS. 

If,  in  an  action  against  two  Defendants 
lor  a  joint  contract,  one  cannot  bt  ta- 
ken, after  the  jsiio-ies  writ,  the  other 
may  be  proce  (led  a^jainsi  alone  — 
S/ierrod\-  Davis,  282 

Villi  /)isroiitimiance.  Administrators  & 
JCxiculirrs.  3.    Slieriff,  6,  13. 

PUIS  DARREIN   CONTINUANCE, 
PI.EA   OF. 

1.  A  plea  puis  darrein  continuance,  is  a 
waiver  of  all  inrnier  pi  a-,  and  an  ad- 
mivsion  ot  the  declaration.  Greer  v. 
Shepperd,  96 


2.  The  court  must  be  satisfied  of  the  pro- 
liable  truth  of  the  plea,  jntis  darrein 
continuance,  hefor^  titv  vill  p.rmtit 
to  he  pleided.  Sur.  Partners  oj  Mc- 
Nauglilon  &  Co.  v.  ISaylor,         '    180 

3.  At  the  pleadinj,'  term,  certain  pleas 
vvere  put  in  :  at  another  term  filter- 
wards,  another  plea  was  added,  but 
not  expressed  to  he  a  plea  puis  dar- 
rein continuance:  The  coun  will  not 
take  the  la^t  plea  to  be  /iw/'s  i.'arrcin 
continuance.     Peak  v.  Fokom,         181 

QUI  TAM  ACTION. 

Vide  Maiement,  6. 

RACING. 

The  rules  of  racing  are  to  be   consulted 
in  deciding  upon   racing    contracts. 
McKenzic  v.  Jlslie,  503 

KECEIVKliS  OF  PUBLIC  MONEY, 
SUMMA  HY.IUDGMEN  r  AGAINST. 

The  act  of  1793,  authorizinif  the  Atlor. 
ney  General  to  take  judgme-nts  against 
the  receivers  of  public  money,  by  mo- 
tion, and  that  their  delmquencies 
shonld  be  sufficient  notice  to  them, 
was  declared  to  be  unconstitiit  onal 
and  void  by  \\  iliiams.  Judge,  but 
was  aftervvards  allowed  by  Macat  and 
AsuE,  .Judges.   State  v.  ,        2S 

RECOGNIZANCES. 

Vide  Judgment,  o. 

RECORD. 

1.  A  copy  of  a  record  should  be  ■c^ria- 
tim,  and  not  be  certified  by  the  clerk 
that  such  things  appeared  to  him  from 
the  record.     IVilcux  \.  Ray,  410 

2.  The  loss  of  a  record  must  be  proved 
hy  the  oath  of  some  person,  an  1  not 
by  the  certificate  of  tiie  clerk.  Id.  410 

RFCORDARI. 

Vide  False  Judgment,  -writ  of. 

REHEAKING,  PETITION  FOB. 

Vide  lieview.  Bill  of. 

RET.MNER. 

A  retainer  may  be  either  pleaded,  or  gi- 
ven in  evidenn  under  the  plea  of /ife. 
ne  adminiitravit.  Evans  v.  Nurria's 
adm^rs  411 

Vide  .idministralors  (J  Executors,  18. 


602 


INDEX. 


HEVIKW,  BILL  OF. 

An  injunclion  apidnst  »  iudfcment  at  law 
ha<l  been  tli'isolved,  ami  upon  the 
coming  out  of  the  execution,  tlic  TJe- 
fondants  at  law  eshibited  their  bill 
prajing  a  recorisidi-raiion  of  the  sen- 
tence of  dissolution ,  and  an  injunction, 
in  the  mean  time,  again'^t  the  execu- 
tion. This  injunction  was  jjiantcdby 
a  Judge  in  vacation  and  the  bill  was 
filed  and  answer  pnt  in.  This  is  not 
a  bill  of  review,  l)ut  the  court  will 
suppori  it  as  a  peliti'  n  for  rcheailnp;. 
Kennon's  ExWs.  v,  Williamson  el  al. 
350 

REVIVOR,  BILL  OF. 

ViAe  Equity,  3. 


Vide  Lien. 


SALVAGE-. 


SCIRE  FACIAS. 

1.  Where  theie  is  Judgment  and  execu- 
tion against  the  aiicesior  in  his  life- 
lime,  no  scirr'  facias  is  n  ccss.iry  hg'nst 
thiheirsordevisees    Bciherv  Long^X 

2.  Where  the  defend  nt  <\w,  his  r.pre- 
srnta'ives  must  be  made  parti'  «  by 
scire  f If  das  ;  but  whenihe  plaintifFd'es 
his  representatives  hive  I  up  terms  un- 
der the  .ac  s  of  irae,  c  14,  ami  1"89, 
c.  57,  sec.  7,  to  come  in  and  be  mi.de 
parties  without  any  process.  Jlvony- 
mout,  455 

SEQUESTRATION. 

Vide  Mimo7>i,  1,  2. 

SET-OFF. 
1   A  set-ufT  agamsi  the  S':ile  was  allow- 
ed in  the  case  ot  th^  Sfate\.  Tuiomci- 
ted  in  State  v.  221 

2,  Uid  quidated  damagrs  cannot  h-  set 
off:  linl  wlun  thiy  are  reduced  in  rem 

judicatam  they  may  be.    Hogg's  Ex'rs. 
V.  Mhe,  471 

3,  In  ^in  aciion  brought  by  two  par'ners 
a  debi  due  from  one  of  iliem  cannot 
be  set-uff;  t)ut  if  one  of  the  partu-rs 
dies,  then  in  a  suit  by  the  sutvivor,  a 
deb!  due  from  him  may  be  set-off. — 
Id  471 

4,  Wl'.-H  a  cliose  in  action  is  assigned  for 
valu!-  received  i.<  deht  contracted 
sub>>q'ir?ni  y  sital  he  avow  j\  even  at 
law.  IS  f  ,-.i-otr  aH-iinst  the  .■ssiguee, 
especially  it  there  be  an  act  of  the  Le- 


gislature taking  notice  of  the  assign- 
ment and  enaliiing  the  assignee  to  sue 
in  his  own  name.     /(/.  471 

SHERIFF. 

1.  A  Sheriff  cannot  legally  purchaase 
property  at  his  "wn  sale,  and  is  pun- 
ishable  for  so  doing.     Jlnonymom,     2 

2.  Sale  of  Kind  by  Slier  ff  when-  tnere  is 
sufficient  personal  properly  is  good  as 
t"  the  purchaser.  Den  on  dem.  of  Of 
borne  v.  Woodson,  24 

3.  Thf  want  ol  forty  days  advertisement, 
or  the  lind's  not  being  sold  untila  day 
or  two  after  the  day  appoinied  will 
not  vitiate  the  sale.      Id.  24 

4.  Dictum  by  the  court  if  the  Sheriff 
sells  real,  when  there  issufficit  n'  per- 
sonal property,  he  will  l>e  liible  to  an 
action  by  the  par  y  grieved,  unless  the 
p  irty  does  not  show  personal  property 
sufficient  to  sitisfy  the  execution. — 
Id.  24 

5.  One  bidder  at  a  Sheriff's  sale  is  suffi- 
cient, and  a  rc-turn  of  "  no  salf  for 
want  of  bidders,"  in  such  case,  will 
suhjeet  the  Sheriff  to  an  indictment 
for  a  false  reuirri.    Slate  v.  Joyce,     43 

6.  Process  r  turned  b_\  the  !)e.  uty  She 
riff,  should  lie  in  the  name  of  the  High 
■^h.  riff,  and  not  in  the  nwme  of  the 
Deputy  for  the  High  Sherifl,  i<ut  a  re- 
turn in  the  I  'It'  r  mo'le  »  assupponed. 
JMcMurphey  v.  Campbell,  •  181 

7.  Judgment  upon  a,  Sheriff's  bond  is 
to  be  entered  for  the  rL';d  am'iint  re- 
covered, not  f  r  the  penalty  'o  De  dis- 
charged by  th'  '  |)aynient  of  ih'  real 
recriverv.  .9dm'rs.  of  Hostler  v.  Pat- 
terson &  others,  216 

8.  One  b'ddir  at  a  Sheriff's  sale  is  suffi- 
•ient  :  but  the  bidder  must  bi  one 
who  is  able  to  advance  ihe  money 
which  h<  offers  as  his  bid.  State  v. 
Johnston,  293 

9.  A  leturn  in  filename  of  the  Higli  She- 
riff by  his  deputy,  if  false,  will  render 
the  Sheriff  liiibh   criminaliter    Id.  293 

10.  A  Slieriff  who  levies  upon  property 
is  bound  to  sell  it  although  the  term 
of  his  office  be  expired.  Jnony- 
mous,  415 

11.  A  Sh.  riff  must  sell,  although  no 
vendiiioni  expoiins  issue.     ItL  415 

12  T:  couri  will  issu<  a  writ  o'  dit. 
tringas  tu  tlie  new  Sheriff  o  compel 
the  late  Sheriff  to  rais«  the  money,  and 


603 


ileliver  it  to  the  new  Sheriff  to  be 
broiighl  mto  court.     Id.  415 

13.  A  recovery  in  ejectment  was  had  a- 
gainsfthe  Sheriff  of  a  county  &  there 
was  no  coroner ;  the  writ  of  po-sessinn 
may  issue  to  the  Sheriff  of  :in  adjoin- 
iii!V  county  uudt-r  the  act  ol'  1779,  c.  5, 
5.  3.     AiionymouSt  422 

14.  If  tiie  Sh'  riff  returns  an  escape  to  a 
capias  ail  vespoiulendum,  lie  may  be 
siieil  for  the  tsiape,  &.  not  be  proce.  d- 
ed  ajT  iinst  as  bail.  Tuton  v.  Ihe  SIteriff 
of  Hake,  485 

15.  A  purchaserof  landsund  r  a  Sheriffs 
sale  cannot  sustiin  an  action  for  money 
iiad  &  received  against  the  Sheriff,  up- 
on the  j;roui.d  that  the  title  was  bad  £c 
Ihe  consideration  had  therefore failtd. 
mighty.  Widie,  492 

■\'ide  Escape,  1. 

SUEKIFF's  SALE. 
Vide  Shfriff,  1,  2,  3,  4,  5,  8,  15. 

SLANDER. 
Words,  in  an  action  of  Slainler,  bear  that 
signification  whicli  they  have  in  com- 
mon parlance  :  therefire,  to  say  one 
lias  sworn  false  in  court,  implies  ma- 
lice. Old  also,  in  this  country,  must 
mean  such  a  court  as  has  power  to  ad- 
miiiisieran  oath,  and  it  s  therefore  ac- 
tionable.    Hamilton  v.  Dent,  116 

SLAVES. 

1.  Where  slaves  are  given  to  one  for  fife, 
remainder  over,  the  increase  born  du- 
ring the  life  intt  rest,  will  go  with  the 
principal  to  th-  renriindtr  man.  'Pirns 
V.  Jfotter  cited  in  Gfasgo-m  v.  Flowers, 

233 

2.  The  action  of  trespass  and  false  im- 
prisonment is  the  usual  and  proper  re- 
medy for  one  who  is  held  in  bonilapre 
to  tr\  his  riijht  of  freeilom.  Evans  v. 
Kenned;/,  4.2 

3.  \V  Uere  the  Plaintiff  in  an  action  ot 
this  kind  is  not  ready,  and  ootains  a 
continuance,  the  ciefcndant  must  irive 
bond  and  -iireties  for  the  plaintiff's 
appearance  at  tile  next  eim,  and  in 
the  mem  time  to  treat  him  witli  hu- 
manity- And  by  Maiwoou,  Judge, 
also  to  allow  ;)Iaiii'iff  dine  to  procure 
ev  dence,  out  Vt  illia.M'.,  .lujge,  was 
"I  :i  il  (l;,reir.  opinion-     Jd,  422 

le  Oifis,  4,  5. 


SPECIAL  PROPERTY. 

Vide  Trover,  3. 

SUCCESSOR. 

Vide  Orphans'  Bonds,  1.  , 

SURUENUEU, 
Vide  Bail,  2,  3,  4. 

SUUVEYOR. 

Vi.le  Costs,  3. 

TENDER. 

1.  In  this  case  the  jury  could  not  agree 
upon  the  evidence,  and  a  juror  was 
withdrawn:  but  it  seemed  to  be  agreed 
by  all  ihe  bar  and  Judge  Macit,  'hat 
if  the  jury  hid  found  for  the  defend- 
ant un  his  plea  of  "  tender  and  refu- 
sal at  the  day  and  place"  whtre  he 
was  bound  by  a  sealf-d  writing  to  deli- 
ver a  certain  parcel  of  cattle,  thai  the 
pi  (intiff  would  iiave  been  forever  bar- 
red otany  recovery  on  the  r  venmt. 
Qnesii  ined  by  Haiwood.  Mchaffyv. 
Spears,  142 

2.  A  lender  of  a '.pecific  article  (as  a  ne- 
gro bo\ )  where  no  particular  place  is 
appointed  for  delivery  is  not  sufficient 
if  only  made  at  the  house  of  the  per- 
son who  is  bound  to  make  it,  Eng- 
land V.  TVitlicrspoon,  361 

TROVER. 

1.  Trover,  trespass,  deceit  or  any  other 
action  ol  the  like  nature  will  lie  against 
executors  fir  a  conversion  by  the  tes- 
t.itor,  where  the  thing  goes  to  increase 
the  estate,  but  not  where  it  is  only 
destroyed.  McKinnie's  Ex'rs.  v.  OH- 
phant's  Ex'rs.  4i 

2.  Trover  will  lie  agiinst  executors  for 
a  conversion  in  the  time  of  their  tes- 
tator.    Decruw  v.  Mone's  Ex'rs.       21 

3.  A,  and  15,  boiii  haie  bills  ol  sale  for 
a  horse  from  a  person  who  hid  bor- 
rowed him  for  a  particular  purpose  ; 
A,  wn  'se  bill  of  sale  is  the  oldest,  has 
liiiii  in  possession  ;   B,  by  some  means 

gets  him  from  A  and  sells  him  to  C. 

A,  is  entitled  to  recover  him  of  C,   in 
the  action  of  trover.   J/ughesv  Giles,"6 

4.  If  one  ol  tW'>  jmnt  owners  of  a  vessel 
forcibly  lake  possession  of  her,  and 
send  her  to  sea,  witliont  irag.inst  the 
will  of  the  ot.ier,  nd  she  is  lost,  he 
Will  b>  h. 'lie  in  trover  for  her.  Zow- 
thurp  \,  Smith,  255 


601 


5.  The  action  of  trovw  may  be  support- 
ed ajjuinst  executors  for  a  conversion 
in  llie  Uleiime  of  their  testator. — 
Clark  V.  Bill,  308 

6.  Tlie  action  of  trover  will  lie  against 
executors,  for  a  conversion  in  the  lilV- 
time  of  their  testator,  aUliour;li  tlie 
estate  may  not  have  been  benefited)/ 
such  conversion.  Avery  v.  Moore's 
Executors,  362 

TRKSPASS. 
Vide  Indictment,  2.    Larceny,  3.    Slaves, 
2.     Abatement,  4. 

TRUST. 

Vide  Ejectment,  4. 

USURY. 

Defendant  had  been  awarded  to  pay  to 
plaintiff  a  certain  sum,  but  at  the  day 
of  payment,  not  having  the  money,  he 
agreed  witli  plaintifl'to  give  more  tlian 
six  per  cent  for  indulgence  ;  and  a 
bond  was  ^iven  for  the  principal  sum, 
and  the  amount  above  ilie  1  g.il  inte- 
rest was  paid  partly  in  m  'nty,  and  a 
noie  given  for  the  b.dance.  Upon  an 
action  on  the  bond,  it  was  held  that  the 
transaction  was  usurious  and  the  bond 
void.     Glisson  v.  Newton's  Exr'e.    336 

USE  AND  OCCUI^ATION. 

Vide  Assumpsit,  action  of,  2 

UNCONSTirUI  lOM  \L    ACTS. 

Vide  Jlcceivcrs  of  the  Public  Money. 

VARIANCE 

1.  Alter  verdict  it  is  too  late  to  take  ad- 
vantage of  a  variance  hetween  the  writ 
and  declaration.  Haywood's  note  tn 
Lewis  V    Vyilliams,  ISO 

2.  The  condition  is  no  ]>  rt  of  the  obli- 
gation, and  a  bond  with  a  condition 
would  not  support  a  declaration  for 
the  sum  mentioned  in  tlie  condition. 
Adams  v.  Spear,  215 

3.  The  words  assigned  in  an  indictment 
for  perjury  were,  that  "  Galling  did 
not  internipi  ili'  c  nst.ihlc  in  diiving 
the  catile  to  Gcttling'a  house,"  aiil  the 
words  proved  were,  tliat  "  Oalling  did 
not  assist  in  ilriving  the  catuc  Irom 
the  officer."  It  was  held,  tliat  the 
words  charged  and  those  proved  must 
be  cle.rly  and  evidently  of  the  same 
meamnfTi  without  the  help  of  any  im- 


plication or  any  thing  extrinsic  j  and 
that  ill  lliis  rase  the  variance  Jiisfalal. 
Slate  V.  Bradley,  403  &  463 

•1.  The  declaration  slated  an  undertaking 
by  two  with  alliird,  to  run  a  race  witli 
him  and  to  pay  him  if  he  won — the  e- 
videiice  was,  of  a  race  made  between 
one  of  the  two  an<l  the  third,  for  per- 
formance whereof,  the  other  of  the 
two  became  his  surety  on  the  day  of 
the  race  It  is  a  fatal  variance. —  ' 
Aitojiyinous,  4SB 

A'ide  Orphans'  Bonds,  2. 

VERDICT. 

1.  No  point  can  be  raised  in  a  special 
verdict  except  what  appears  upon  the 
record.     Aito?iymous,  459 

2.  A  verdict  finding  among  otherthines, 
an  issce  not  submitted  to  tli  jury.is 
void  as  1 1  such  finding.     Anony.     144 

Vide  Larceny,  2.     Jury  and  Jurors,  1,  2. 

WARRANT. 

A  wiiriant  of  a  Justice  winch  does  not  ap- 
point a  diiy  and  place  within  the  thirty 
d.iys  for  the  defendant  to  appear,  is 
erroneous.     Anonymous,  398 

Vide  Arrest,  1,  2,  5. 

WARRANIY. 

1.  Caveat  emptor  applies,  where  a  man 
puicliases  |)eisoiiul  property  not  in  the 
possession  of  tlie  vendor.  It  also  ap- 
plies where  there  is  a  visible  delect  in 
the  (liing  sold  ;  and  m  c.ich  of  tiiese 
cases  no  implied  warranty  will  be  rai- 
sed.    Galtiroith  v.  TVtiite,  464 

2.  Ifa  man  sell  an  unsound  horse  whose 
disorder  IS  not  known,  and  receives 
full  value,  the  sound  price  implies  an 
assumpsit  that  tlie  horse  is  sound. — 
/./.  464 

WIT.NESS. 

1.  Interest  in  the  cveni  of  the  question, 
but  not  of  the  cause,  will  not  exclude 
a  witness.   Farrel  v.  I'erry,  2 

2.  A  person  eniiiled  to  a  reward  oncreii 
by  the  General  AsS;:  iioiy,  upon  the 
conviction  ol  an  oiieiider,  is  a  compe- 
tent witness  against  such  offender. — 
Stale  v.  Coulter,  3 

3.  Interest  in  the  event  of  th.-  question, 
will  exclude  a  witness.  Madux  v  Hos- 
kins,  4 

4.  Motion  to  prevent  the  taxing  the 
Ilefend.int  with  the  costs  of  two  wit- 


605 


uesses  who  were  not  sworn,  as  only 
one  fact  was  to  be  established  and  two 
other  witnesses  had  been  Called  upon 
for  that  purpose  :  Motion  denie.l,  as 
the  defendant  had  summoned  a  wit- 
ness who  was  absent  and  they  might 
have  been  introduced  to  counteract 
his  testimony.      Hayle  v.  Cowan,       21 

'.  Macat,  Judge,  inclined  to  think  that 
tlie  handwriting  of  a  subscribing  wit- 
ness who  had  voluntarily  b  come  inte- 
rested in  the  bond,  could  not  be  pro- 
ved ;  but  the  case  was  adjourned.— 
Jlamilion  v.  TVilUams,  139 

■  Tne  interest  tn  exclude  a  witness  to 
a  will  must  be  eiihei'  an  express  lega- 
cy directly  to  him,  a  legacy  witl^  an 
express  use  for  him,  or  a  secre;  trust 
an,d  agreement  on  the  part  of  tne  f  g- 
atee  t'lir  his  use  ;  an  J  a  declaration  jv 
v/itness  that  legatee  holds  for  his  use, 
win  rot  exclude,  unless  it  be  proved 


that  the  legiftee  had  made  an  engage- 
ment to  hold  for  his  benefit.  Rogers 
V.  Briles,  256 

7.  Though  a  fact  be  positively  sworn  to 
by  one  or  two  witnesses,  and  they  a- 
gree  pretty  well  in  their  testimony, 
yet  the  jury,  either  from  their  charac- 
ter, or  tiie  circumstances  of  the  case,- 
may  disbelieve  them  and  find  agiinst 
their  evidence      IJ.  256 

8.  The  wife  of  a  person  interested  in  (he 
eveni  of  thr  question,  but  not  >f  the 
cause  is  adm  ssible  as  a  witness  — 
Pcrier  v.  McClure,  360 

9.  The  Slate  uia.  discredit  its  own  wit- 
ness by  proving  that  ihe  witniss  on 
form^-r  occasinns  h  d  given  a  i.fTrr.  nt 
account  of  the  traiisaclK>n  Irom  that 
wliic'i  iie  relates  in  court.  State  v. 
Norris,  42P 

Vide  Evidence. 


ERRATA. 


I'age,  Line: 
1        *4     of  the  note  strike  out  the  wonls,  "if  gift." 

5         last  of  the  nbstivict  'o  the  case  of  Greenlee  v.  Young',  for  "  consideration" 
read  "  CODilltinn  " 
from  the  boitom,  for  "  could  be  sold,"  r.  "  could  not  be  sold." 
of  the  note,  tor  "  aci    .fI714,"r.  "  uct  of  1784." 
from  tlie  bottom,  for  "  now"  i .  "  not." 
of  the  note,  .ov  "  oinds  lands  from  its  teste,"  r.  "  binds  lands  from  its 

levy." 
from  the  top,  for  "  directed"  r.  "  decided." 
for  "  establishing"  r.  "  a  lolishici.;  " 

of  the  abstract  to  the  case  of  Seurs  t;.  Parker,  for  "cases" r.  "causes." 
from  the  bottom,  for  "  couri"  v.  "count." 
fio'ii  the  top,  for  "  warrant"  r.  "covenant." 
from  the  top,  for  "  buy"  r.  "  levy." 

in  the  words  "  without  what  valu  "  strike  out  "  without." 
from  the  bottom,  for  "  McAuslin's"  r.  "  McNaughton's. " 
from  the  bottom,  for  "  miicli  less  g-eiienl"  r.  "  much  more  general." 
from  the  top,  insert  ''is**  betweeii  **  condition**  and  "  no  part." 
from  the  bottom,  for  "  action*'  r.  **  r.ason." 

from  the  bottom,  for  "  April  Term,  1794,"  r.  "  Aprd  Term,  1795." 
592  number  18  of  the  title  Evidence  in  the  Index,  for  "testified"  r.  "  certified." 
595  number    3  of  the  title  Husband  &  Wife,  in  the  Index,   for  "  representation" 
r.  "  representatives." 

*  In  the  table  of  the  cases  reported,  the  notes  and  the  index,  reference  is  made 
to  the  pages  of  the  first  edition  ;  but  in  the  foregoing  list  of  Errata,  the  pages  of 
"he  Dfesent  edition  are  referred  to. 


81 

10 

S5 

1 

87 

16 

111 

24 

130 

10 

135 

1 

145 

1 

162 

11 

172 

3 

174 

32 

175 

1 

217 

21 

229 

5 

246 

2 

269 

3 

456 

20 

I 


i 


Si 


f^ 


(§ 


I 


